Aiden Lofts v The Broadbeach Tavern

[2021] FWC 2055

[2021] FWC 2055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aiden Lofts
v
The Broadbeach Tavern
(U2021/2457)

COMMISSIONER BISSETT MELBOURNE, 15 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 24 March 2021, Mr Aiden Lofts 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).

[2] Mr Lofts advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with The Broadbeach Tavern on 31 December 2020 and he was notified of his dismissal on 24 March 2021. Mr Lofts however, did not answer question 1.3, with respect to the date the dismissal took effect.

[3] On 25 March 2021, the Commission attempted to contact Mr Lofts on his nominated telephone number. A voicemail message was left requesting Mr Lofts to contact the Commission to confirm his employment period and to discuss about the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Lofts’s nominated email address advising Mr Lofts that, given the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lofts to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Lofts that if he did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Mr Lofts’s nominated telephone number requesting that he contact the Commission.

[5] The required documentation was not received and on 9 April 2021 and the Commission again attempted to contact Mr Lofts via his nominated telephone number. However, Mr Lofts could not be reached. A voicemail message was left requesting to contact the Commission and to advise his application may dismissed if his employment period was not confirmed.

[6] To date, Mr Lofts has not replied to the Commission’s correspondence.

[7] 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.

[8] In the circumstances of this matter, I am satisfied Mr Lofts has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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.

[10] 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.

[11] Having regard to the circumstances of this matter, I am satisfied that as Mr Lofts 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

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