Anthony Green v Petuna Seafoods

[2018] FWC 434

[2018] FWC 434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Green
v
Petuna Seafoods
(U2017/13052)

COMMISSIONER BISSETT MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On 7 December 2017, Mr Anthony Green made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Green did not pay the required fee.

[3] In his Form F2 – Unfair dismissal application, Mr Green advised he commenced employment with Petuna Seafoods on 29 May 2017 and was notified of his dismissal on 3 November 2017, with it taking effect on 19 November 2017.

[4] On 12 December 2017, correspondence was sent to Mr Green confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. Mr Green was directed to file in the Fair Work Commission (the Commission) any documents or evidence to support his claim of having served the minimum employment period within 14 days. The correspondence further noted the application was made without payment of the filing fee. Mr Green was provided an application for fee waiver and advised that in the absence of any advice from him within 14 days, his application may be dismissed. An attempt to telephone Mr Green was also made on 12 December 2017, with a voicemail message being left seeking a return call.

[5] On 21 December 2017, Mr Green emailed the Commission and advised he intended to seek legal advice concerning his dismissal. The following day, the Commission telephoned Mr Green regarding the minimum employment period requirement under the Act and provided him with contact telephone numbers for the Hobart Community Legal Service and Job Watch.

[6] Further email correspondence was sent to Mr Green on 4 January 2018, which advised that unless contact was made with the Commission within 7 days with an explanation as to why he had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[7] As no response had been received, on 15 January 2018, a final attempt to contact Mr Green via telephone was made and a voicemail message was left.

[8] To date, Mr Green has not responded to the Commission’s correspondence.

[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] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. Further, I am satisfied Mr Green has not completed the required minimum employment period and his application has no reasonable prospects of success. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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