Andrew Shepherd v The Trustee for Cafe Java Panaderia Trust T/A Goanna Bakery & Café

[2018] FWC 6043

[2018] FWC 6043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Shepherd
v
The Trustee for Cafe Java Panaderia Trust T/A Goanna Bakery & Café
(U2018/7985)

DEPUTY PRESIDENT DEAN SYDNEY, 27 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 2 August 2018, Mr Andrew Shepherd made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Shepherd’s application states that he commenced employment with The Trustee for Cafe Java Panaderia Trust T/A Goanna Bakery & Café (Goanna Bakery) on 22 June 2017 and that his dismissal took effect on 15 July 2018.

[3] On 11 August 2018, Goanna Bakery filed an Employers Response (form F3) objecting to the application on the grounds that Mr Shepherd had not met the minimum employment period. Goanna Bakery submits that Mr Shepherd commenced work on 9 September 2017. Goanna Bakery further submitted that it is a small business with fewer than 15 employees at the time of Mr Shepherd’s termination.

[4] On 13 September 2018, correspondence was sent to Mr Shepherd indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Shepherd to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 21 September 2018, correspondence was sent to Mr Shepherd noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Shepherd was given until 4pm,
25 September 2018, to respond. Mr Shepherd was advised that in the absence of any material being received, his application may be dismissed.

[6] On 26 September 2018, Mr Shepherd was contacted by telephone and advised that unless a statement was received that day his application would be dismissed.

[7] To date, Mr Shepherd has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] 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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied Mr Shepherd has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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