Ben Irvine v Lee Dale

[2023] FWC 70

[2023] FWC 70

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ben Irvine
v

Lee Dale

(U2022/11941)

COMMISSIONER BISSETT MELBOURNE, 11 JANUARY 2023

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

1. On 16 December 2022 Mr Ben Irvine made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Mr Irvine advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Lee Dale on 26 September 2022 and that his dismissal took effect on 6 December 2022.

1. On 19 December 2022 the Commission attempted to contact Mr Irvine on his nominated telephone number. A voicemail message was left advising Mr Irvine that he had not served the minimum employment period and may be ineligible to make an unfair dismissal application.

1. Later that day the Commission emailed correspondence to Mr Irvine’s nominated email address advising Mr Irvine that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Irvine to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

1. As the required documentation was not received, on 3 January 2023 the Commission attempted to contact Mr Irvine on his nominated telephone number However he could not be reached. A voicemail message was left reminding Mr Irvine that, if he wished to continue with his case, the Commission required confirmation that the minimum employment period was served.

1. A final attempt to contact Mr Irvine was made by the Commission on 6 January 2023 to discuss the unfair dismissal application. The call was not answered and a voicemail message was left requesting that Mr Irvine call the Commission to discuss his application.

1. To date Mr Irvine has not replied to the Commission’s correspondence.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Irvine has not completed the required minimum employment period.

1. 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.

1. Section 587(1) of the FW Act provides as follows:

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 prospect of success.

1. As Mr Irvine has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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