Application for an unfair dismissal remedy

[2017] FWC 4667

[2017] FWC 4667

FAIR WORK COMMISSION

REASON FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Cunningham
v
Pritchard-Gordon Racing Pty Ltd
(U2017/7997)

COMMISSIONER WILSON MELBOURNE, 8 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 24 July 2017 Mr Joseph Cunningham made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Cunningham advised that he commenced employment with Pritchard-Gordon Racing Pty Ltd T/A Pritchard-Gordon Racing (Pritchard-Gordon Racing) from 1 August 2016 and his dismissal took effect on 7 July 2017, approximately 11 months later.

[2] On 1 August 2017 Pritchard-Gordon Racing raised a jurisdictional objection to the application submitting Mr Cunningham was not protected from unfair dismissal because he had not served the minimum employment period pursuant to s.382(a) of the Act. Pritchard-Gordon Racing submit they employ nine employees as such are a small business employer under s.23(1) of the Act and submitted in the hearing that there are no associated entities to be taken into account under s.23(3) of the Act.

[3] The Fair Work Commission (Commission) issued a notice of listing on 4 August 2017 to deal with the jurisdictional objection raised by Pritchard-Gordon Racing. The notice of listing stated that submissions were due from the Respondent by noon 14 August 2017 and from the Applicant by noon 24 August 2017.

[4] The Respondents outline of submissions provided included two attachments, firstly a Bank Payments Statement from 28 June 2017 to 4 July 2017 which showed that nine employees other than Mr Cunningham were paid weekly wages. Secondly, a Payroll Employee Summary which also demonstrated that nine employees apart from Mr Cunningham were employed at Pritchard-Gordon Racing between 5 July 2017 and 5 July 2017.

[5] On 30 August 2017, the Commission made a telephone call to the contact number provided in Mr Cunningham’s application as he had not provided any submissions to date. Mr Cunningham did not answer the call and therefore a voice message was left requesting an urgent call back and advising that his submissions were late.

[6] On 31 August 2017, the Commission again made a telephone call to Mr Cunningham to follow up on his submissions. However, Mr Cunningham did not answer that call and a further voice message was left requesting an urgent call back and advising that his submissions were late. On the same date the Commission sent further correspondence to Mr Cunningham via email confirming that no submissions had been received and requesting Mr Cunningham make urgent contact with the Commission as to whether he intended to file submissions.

[7] On 4 September 2017, the Commission made a further telephone call to Mr Cunningham. Mr Cunningham did not answer this telephone call and therefore a voice message was left requesting an urgent call back regarding his submissions and whether he intended to appear at the hearing listed on Friday, 8 September 2017. A follow up email was also sent on this date requesting Mr Cunningham indicate whether he was proceeding with his application, in which case submissions needed to be filed urgently, or alternatively if the application was to be withdrawn that a From F50 notice of discontinuance as attached be signed and returned.

[8] The same sequence was again followed on the 5 September 2017. The telephone call was once more unanswered, a voice message was left and a follow up email was sent requesting urgent contact be made with the Commission either providing submissions or submitting a Form F50.

[9] At 4:17pm on 6 September 2017 Mr Cunningham called the Commission however this telephone call was unanswered. As such Mr Cunningham left a voice message advising he was returning the Commission’s call. The Commission contacted Mr Cummings by telephone the following day on Thursday, 7 September 2017 at 8:22am however again there was no answer and a voice message was left requesting a call back.

[10] A further telephone call was made to Mr Cunningham at 2:08pm on 7 September 2017. A voice message was again left advising that in the absence of any further submissions being provided, Mr Cunningham’s application would be determined on the material currently before the Commission.

[11] Mr Cunningham was again contracted by telephone on the date of the hearing at 9:32am and 9:34am Friday, 8 September 2017. Mr Cunningham did not answer those telephone calls. Voice messages were left requesting Mr Cunningham make urgent contact with the Commission and advising that the hearing was about to commence.

[12] Section 382 of the 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.

[13] 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.”

[14] Section 23 of the Act relevantly defines a small business employer as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.”

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

[15] 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.”

[16] In the circumstances of this matter, I am satisfied that Pritchard-Gordon Racing is a small business employer. I also am satisfied that Mr Cunningham has not completed the required minimum employment period and his application has no reasonable prospect of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued at the same time as the Reasons for Decision.

COMMISSIONER

Appearances:

Mr Wayne Lee on behalf of the Respondent.

Hearing details:

2017.

Melbourne:

September 7.

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