Bailey Smyth-Hutt v Hurst Retailing Pty Ltd

[2020] FWC 1955

[2020] FWC 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bailey Smyth-Hutt
v
Hurst Retailing Pty Ltd
(U2020/2240)

COMMISSIONER BISSETT MELBOURNE, 16 APRIL 2020

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 27 February 2020, Mr Bailey Smyth-Hutt made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair dismissal application, Mr Smyth-Hutt advised that he commenced employment with Hurst Retailing Pty Ltd on 8 August 2019 and that his dismissal took effect on 9 January 2020.

[3] On 28 February 2020, the Commission telephoned Mr Smyth-Hutt on his nominated mobile number to discuss his application however Mr Smyth-Hutt did not answer the call and there was no capacity to leave a voicemail message. An SMS was also sent to Mr Smyth-Hutt requesting he contact the Commission.

[4] Later that day the Commission sent email correspondence to Mr Smyth-Hutt’s nominated email address advising that on the basis of the information contained in his application he had not served the minimum employment period. The correspondence required Mr Smyth-Hutt to file any documents/evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application. Mr Smyth-Hutt did not respond.

[5] On 17 March 2020 the Commission attempted to contact Mr Smyth-Hutt on his nominated mobile number to discuss his application. Mr Smyth-Hutt did not answer the call and there was no capacity to leave a voicemail message.

[6] On the same day the Commission sent email correspondence to Mr Smyth-Hutt’s nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s correspondence, his application would be determined based on the material before the Commission.

[7] On 27 March 2020 the Commission made a final attempt to contact Mr Smyth-Hutt on his nominated telephone number to discuss his application. Mr Smyth-Hutt did not answer the call and there was no capacity to leave a voicemail message.

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

[9] 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.

[10] 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.

[11] Section 587(1) of the FW Act states 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 prospects of success.

[12] Having regard to the circumstances of this matter, I am satisfied that as Mr Smyth-Hutt has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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