Alexander Lubcke v McQueen's Tavern (GRSA) Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Alexander Lubcke v McQueen's Tavern (GRSA) involved an application for relief from unfair dismissal made by Mr. Alexander Lubcke to the Fair Work Commission. Mr. Lubcke claimed he was unfairly dismissed by his employer, McQueen's Tavern (GRSA), after a brief period of employment, and sought a remedy under the Fair Work Act 2009. The Commission was tasked with determining whether Mr. Lubcke had served the minimum employment period required to be protected from unfair dismissal and if his application had reasonable prospects of success. The Commission's decision was based on the information provided in Mr. Lubcke's Form F2 Unfair Dismissal Application, which indicated that he had commenced employment on 28 April 2022 and was dismissed on 25 October 2022.

The primary legal issue before the Commission was whether Mr. Lubcke had completed the minimum employment period stipulated by the Fair Work Act 2009, which would entitle him to protection from unfair dismissal. Under Section 383 of the Act, the minimum employment period is six months if the employer is not a small business employer, and one year if the employer is a small business employer. Given that McQueen's Tavern (GRSA) was considered a small business employer, the critical period was one year. The Commission had to determine if Mr. Lubcke's employment period met this requirement. Additionally, the Commission assessed if Mr. Lubcke's application had reasonable prospects of success, as outlined in Section 587(1) of the Act.

The Commission concluded that Mr. Lubcke had not completed the required one-year employment period, as his employment ended less than a year after commencement. The Commission noted that Mr. Lubcke did not provide any evidence to support his claim that he had served the required minimum employment period. Furthermore, despite attempts to contact Mr. Lubcke to request additional documentation, he did not respond. Consequently, the Commission found that Mr. Lubcke's application had no reasonable prospect of success and dismissed it under Section 587(1)(c) of the Fair Work Act 2009. An order to this effect was issued alongside the decision.

This decision underscores the importance of completing the minimum employment period to be eligible for protection against unfair dismissal. The Fair Work Commission's ruling highlights the necessity for employees to provide sufficient evidence to substantiate their claims, especially in cases where the employment period is close to the required threshold. The dismissal of Mr. Lubcke's application serves as a reminder of the procedural requirements and the importance of timely and adequate responses to correspondence from the Commission.

Alexander Lubcke v McQueen's Tavern (GRSA)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established