Alexander Lubcke v McQueen's Tavern (GRSA)
[2022] FWC 3069
•18 NOVEMBER 2022
| [2022] FWC 3069 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alexander Lubcke
v
McQueen’s Tavern (GRSA)
(U2022/10379)
| COMMISSIONER BISSETT | MELBOURNE, 18 NOVEMBER 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 26 October 2022, Mr Alexander Lubcke 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 Lubcke advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with McQueen’s Tavern (GRSA) on 28 April 2022 and he was notified of his dismissal on 25 October 2022.
On 28 October 2022, The Commission emailed correspondence to Mr Lubcke’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lubcke to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Lubcke did not contact the Commission within 14 days, the application may be dismissed without further notice.
As the required documentation was not received, on 16 November 2022 the Commission attempted to contact Mr Lubcke on his nominated telephone number. However, Mr Lubcke could not be reached. A voicemail message was left requesting a call back.
To date Mr Lubcke has not replied to the Commission’s 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.
In the circumstances of this matter, I am satisfied Mr Lubcke has not completed the required minimum employment period and his 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 prospect of success.
Having regard to the circumstances of this matter I am satisfied that as Mr Lubcke 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] PR748066
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