Barnes v Imperial Glass

[2016] FWC 1316

[2016] FWC 1316

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Jamie Barnes
v
Imperial Glass
(U2016/3990)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 1 MARCH 2016
Application for relief from unfair dismissal.

[1]        On 21 January 2016, Mr Jamie Barnes made an application for a remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2]        Mr Barnes advised that he commenced employment with Imperial Glass on 28

September 2015 and that his dismissal took effect on 18 December 2015.

[3]        On 25 January 2016, correspondence was sent to Mr Barnes pointing out that on the

basis of the information contained in the application, he had not served the minimum

employment period. The correspondence required Mr Barnes to advise the Fair Work

Commission by 3 March 2016, whether he wished to proceed with his application.

[4]        On 2 February 2016, correspondence was sent to Mr Barnes stating that the letter of 25

January 2016 advising that the date of 3 March 2016 was an error and he was directed to file

with the Commission, within fourteen days, any documents to support his claim that he had

served the minimum employment period.

[5]        On 17 February 2016, correspondence was sent to Mr Barnes stating that no material

had been received. He was advised that if he did not contact the Commission within seven

days, and provide an acceptable explanation of why he did not respond to this direction, his

application would be determined on the material currently before the Commission without

further reference to him.

[6]        Mr Barnes did not reply to that correspondence.

[7]        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.
[2016] FWC 1316

[8]        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.

[9]        In the circumstances of this matter, I am satisfied Mr Barnes has not completed the

required minimum employment period.

[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]      As Mr Barnes had not completed the minimum period of employment, his application

has no reasonable prospects of success. Consequently, the application is dismissed under

section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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