Adam Baker v Urbanvirons Group Pty Ltd Summary

[2022] FWC 9

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Adam Baker

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

Printed by authority of the Commonwealth Government Printer

In the matter of Adam Baker v Urbanvirons Group Pty Ltd, the Fair Work Commission was tasked with considering an application for relief from unfair dismissal. The dispute arose from Mr. Baker's termination of employment by Urbanvirons Group Pty Ltd, a company engaged in property development and management. The crux of the matter involved whether Mr. Baker, who had been employed for less than the statutory minimum period, was entitled to relief from the dismissal despite the absence of an application by him.

The primary legal issues before the Commission were whether Mr. Baker met the threshold requirement of having been continuously employed for six months, and if the dismissal was unfair under section 569A of the Fair Work Act 2009. Additionally, the Commission needed to determine whether the dismissal was initiated under section 587 of the Act, and if so, whether the dismissal was unfair, unjustified, or unreasonable. The central focus was on whether the dismissal was procedurally or substantively unfair, and if there were any mitigating circumstances warranting relief from the dismissal.

The Fair Work Commission, in its decision, highlighted that Mr. Baker had not satisfied the minimum employment period requirement, which is a prerequisite for unfair dismissal claims. Consequently, the Commission held that the dismissal did not meet the criteria for relief as per section 587 of the Fair Work Act. The Commission concluded that since Mr. Baker had not been continuously employed for six months, the dismissal did not fall within the scope of unfair dismissal provisions, and therefore, no relief was granted. The Commission's decision was based on the statutory requirements and the procedural fairness of the dismissal process.

The Fair Work Commission ordered that the application for relief from unfair dismissal be dismissed. The Commission found that Urbanvirons Group Pty Ltd had not contravened any provisions of the Fair Work Act in dismissing Mr. Baker and that the dismissal was not unfair. Consequently, Mr. Baker's application for relief from unfair dismissal was rejected in its entirety.

Adam Baker v Urbanvirons Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established