Adam Greer v East Warrnambool Fish and Chips

[2016] FWC 1052

[2016] FWC 1052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Greer
v
East Warrnambool Fish and Chips
(U2015/16753)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 15 December 2015, Mr Adam Greer made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Greer advised that he commenced employment with East Warrnambool Fish and Chips on 1 October 2015 and that his dismissal took effect on 5 December 2015.

[3] On 16 December 2015, the Fair Work Commission telephoned Mr Greer pointing out that on the basis of the information contained in the application; he had not served the minimum employment period.

[4] On 17 December 2015, the Commission sent correspondence to Mr Greer that required him to advise the Fair Work Commission within fourteen days whether he wished to proceed with his application.

[5] On 22 December 2015, the Commission received an email from Mr Greer stating that his first shift was on 18 August 2015.

[6] On 23 December 2015, the Commission telephoned Mr Greer, a voicemail was left requesting that he call back in relation to the email he had sent, as on the information he had provided the minimum employment period had still not been met.

[7] On 6 January 2016, the Commission telephoned Mr Greer; a voicemail was left requesting that he call the Commission in relation to the minimum employment period.

[8] On 13 January 2016, the Commission sent correspondence to Mr Greer that required him to advise the Commission within fourteen days whether he wished to proceed with his application and that if he did not do so, his application would be dismissed.

[9] On 29 January 2016, the Commission telephoned Mr Greer, there was no answer and a voicemail was unable to be left, the mobile appeared to be disconnected. Later that day correspondence was sent to Mr Greer advising that several attempts had been made to contact him and that they had failed. That unless he contacted the Commission within seven days and provided an acceptable explanation of why he has not responded his application would be determined on the material currently before the Commission, without further reference to him.

[10] To date, Mr Greer has not replied to that correspondence.

[11] Section 382 of the 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.

[12] Section 383 of the Act sets out the minimum employment period:

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.

[13] Even assuming Mr Greer commenced employment on 18 August 2015, the minimum period of employment would have ended at midnight on 17 February 2016. I am satisfied Mr Greer has not completed the required minimum employment period and his application has no reasonable prospects of success.

[14] Section 587(1) of the Act provides:

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.

[15] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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