Adam Baker v Urbanvirons Group Pty Ltd
[2022] FWC 9
•5 JANUARY 2022
| [2022] FWC 9 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Unfair dismissal
Adam Baker
v
Urbanvirons Group Pty Ltd
(U2021/9414)
| COMMISSIONER bISSETT | MELBOURNE, 5 JANUARY 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 19 October 2021, Mr Adam Baker (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with Urbanvirons Group Pty Ltd on 25 May 2021 and that his dismissal took effect on 8 October 2021
On 22 October 2021, the Commission contacted the Applicant on his nominated telephone number. The Commission advised the Applicant that based on the information provided in the Form F2 he had not served the minimum employment period. The Applicant said that he could not remember his actual date of commencement and is unable to retrieve email correspondence or any communication with the Respondent as he has been locked out of his email account. The Applicant was asked to confirm in writing on which date he believes he started working for the Respondent.
As no email correspondence was received, on 28 October 2021 the Commission sent email correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.
As the required documentation was not received, on 12 November 2021 the Commission contacted the Applicant on his nominated telephone number to discuss his application. The Applicant advised he has now engaged a lawyer to act on his behalf. The Commission again explained to the Applicant that based on the information provided in the Form F2 he did not meet the minimum employment period and advised that if he does not provide the requested documentation by 16 November 2021 the Commission may consider dismissing the application.
To date, the Applicant has not provided the required documentation.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his/her application has no reasonable prospects of success.
Section 383 of the FW Act sets out the minimum employment period as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a)if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
Section 587(1) of the FW Act provides that:
587 Dismissing applications
(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued shortly.
COMMISSIONER
[1] PR737284
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