Allan Swinden v City Builders Pty Ltd

[2020] FWC 6775

[2020] FWC 6775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allan Swinden
v
City Builders Pty Ltd
(U2020/15180)

COMMISSIONER BISSETT MELBOURNE, 17 DECEMBER 2020

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 24 November 2020 Mr Allan Swinden 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 Swinden advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with City Builders Pty Ltd on 3 November 2020 and that his dismissal took effect on 20 November 2020.

[3] On 25 November 2020 the Commission attempted to contact Mr Swinden on his nominated telephone number. A voicemail message was left requesting that Mr Swinden contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Swinden’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 Swinden to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Swinden did not contact the Commission within 14 days the application may be dismissed. An SMS notification was also sent to Mr Swinden’s nominated telephone number requesting that he contact the Commission.

[5] Mr Swinden contacted the Commission on the 26 November 2020 via the nominated email address. Mr Swinden advised of the following: "Hi, what a pathetic rule that allows scum employers as this one to treat people badly and obviously with the blessing of the FWC. Thanks for nothing, and typical of a government dept". He otherwise did not provide any evidence that he had completed the required minimum employment period.

[6] As the required documentation was not received, on 8 December 2020, the Commission attempted to contact Mr Swinden via his nominated telephone number. However, Mr Swinden could not be reached. A generated message from the Telstra provider advised that the mobile number was not valid and that there was no option available to leave voicemail.

[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 Swinden has not completed the required minimum employment period and his application has no reasonable prospects of success. I would observe in passing that the requirement to work the minimum employment period is specified in the FW Act. That the requirements of the FW Act must be met to make a valid application is not indicative of the Commission “blessing” the conduct of any employer, regardless of the period of employment.

[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 Swinden has not completed the required minimum employment period under the FW Act, the 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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