Alexander Brown v Caloundra Crash Repairs

[2017] FWC 897

[2017] FWC 897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Brown
v
Caloundra Crash Repairs
(U2017/517)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 17 January 2017, Mr Alexander Brown made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brown advised that he commenced employment with Caloundra Crash Repairs on 5 September 2016 and that his dismissal took effect on 21 December 2016. The application was also filed outside the 21 day legislated timeframe for lodging an unfair dismissal application.

[3] On 19 January 2017, Mr Brown confirmed via telephone that the employment dates provided on his application were correct. Correspondence was then sent to him pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Brown to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.

[4] On 2 February 2017, a further attempt to contact Mr Brown via telephone was made. A person with Mr Brown, who was driving, took the call and was advised that further correspondence from the Commission would be sent shortly. On the same day, a final letter was sent to Mr Brown, allowing a further seven days in which to reply. Mr Brown was advised that if there was no response, his application would be determined on the material currently before the Commission.

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

[6] 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.

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Mr Brown has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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