Aiden Lee Orr v Coles Group Limited T/A Cole Supermarkets
[2022] FWC 372
| [2022] FWC 372 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Aiden Lee Orr
v
Coles Group Limited T/A Cole Supermarkets
(U2022/1261)
| COMMISSIONER BISSETT | MELBOURNE, 28 FEBRUARY 2022 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 28 January 2022 Mr Aiden Lee Orr 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).
Mr Orr advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Coles Group in September 2021 and that he was notified of his dismissal on 25 January 2022. Mr Orr provided 25 February 2022 as the date the dismissal took effect, which at the time of making the application and this decision is a date that has not yet occurred. His application was also incomplete in that he did not provide contact details for the respondent.
On 1 February 2022 the Commission attempted to contact Mr Orr on his nominated telephone number to discuss his application. The call was not answered, and a voicemail message was left requesting he contact the Commission.
Later that day, the Commission emailed correspondence to Mr Orr’s nominated email address advising Mr Orr that on the basis of the information provided in the Form F2, he had not served the minimum employment period and requesting he complete the respondent section of the Form F2 in full. The correspondence directed Mr Orr to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Orr did not contact the Commission within 14 days, the application may be dismissed without further notice.
On 2 February 2022 Mr Orr contacted the Commission via email. Mr Orr advised that he would remain employed until 25 February 2022 and that by this date he would have satisfied the minimum employment period.
As the required documentation was not received, on 15 February 2022 the Commission attempted to contact Mr Orr via his nominated telephone number. However, Mr Orr could not be reached. A voicemail message was left requesting he contact the Commission urgently via telephone.
Despite responding to the Commissions correspondence, the applicant has not provided any evidence that he meets the minimum employment period. He has also not provided any contact details for the respondent. Additionally, the application may be premature in that it appears Mr Orr may not yet have been dismissed.
On 23 February 2022 my chambers wrote to Mr Orr:
I refer to your application to the Commission in relation to your dismissal from Cole Supermarkets due to take effect on Friday 25 February 2022.
The Commission has sought information from you in relation to your period of employment.
On the information you have provided you commenced employment in September 2021 and your employment will end on 25 February 2022. If we took your commencement date as 1 September 2021 (as you do not specify the specific date) you will, at the time of your dismissal, have been employed for less than 6 months (it would be 5 months and 25 days).
The Fair Work Act 2009 (FW Act) says that you must be employed for a minimum period of 6 months.
The purpose of our previous correspondence and attempts to contact you was to ascertain whether the information you have provided is correct. If it is correct you cannot make an application for unfair dismissal to the Commission and your application will be dismissed.
If you have any evidence that demonstrates you were employed for 6 months immediately prior to your dismissal you are required to provide that to the Commission by 4.00pm Friday 25 February 2022. Commissioner Bissett will determine the future of your application after that time.
There was no response to this correspondence.
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.
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 prospect of success.Having regard to the circumstances of this matter I am satisfied that as Mr Orr 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 with this decision.
COMMISSIONER
[1] PR738602.
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