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

[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

Printed by authority of the Commonwealth Government Printer

1 PR718274.

In the matter of Bailey Smyth-Hutt and Hurst Retailing Pty Ltd, the Federal Circuit and Family Court addressed the application for an unfair dismissal remedy. Smyth-Hutt sought redress for his dismissal from Hurst Retailing Pty Ltd, contending that his dismissal was unjust. The company, on the other hand, argued that the dismissal was both fair and within the parameters set by the Fair Work Act 2009. The Fair Work Commission had initiated the dismissal, which was based on section 587 of the Act. The dispute hinged on whether Smyth-Hutt met the minimum employment period requirement and if the dismissal was justified under the law.

The court was tasked with determining the validity of Smyth-Hutt's claim for unfair dismissal, particularly focusing on whether he had completed the requisite minimum employment period before his termination. Additionally, the court had to assess the fairness of the dismissal as per the statutory provisions. The key legal issue was whether the Fair Work Commission had correctly applied the law in initiating the dismissal and whether Hurst Retailing Pty Ltd had valid grounds for terminating Smyth-Hutt’s employment.

In delivering the judgment, the court found that Smyth-Hutt did not meet the minimum employment period required for an unfair dismissal claim. The court emphasised that for such a claim to be valid, the employee must have been employed for at least the qualifying period, which in this case was not met by Smyth-Hutt. Consequently, the court ruled that the dismissal was conducted in accordance with the law, and there was no basis for the unfair dismissal claim. As such, the application for an unfair dismissal remedy was dismissed.

Bailey Smyth-Hutt v Hurst Retailing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established