Benjamin Aimsley v Barra Steel (Vic) Pty Ltd

[2020] FWC 3726

[2020] FWC 3726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Benjamin Aimsley
v
Barra Steel (Vic) Pty Ltd
(U2020/8875)

COMMISSIONER BISSETT MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 26 June 2020, Mr Benjamin Aimsley 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).

[2] Mr Aimsley advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Barra Steel (Vic) Pty Ltd on 11 March 2020 and that his dismissal took effect on 15 June 2020.

[3] On 29 June 2020, the Commission attempted to contact Mr Aimsley on his nominated telephone number. A voicemail message was left explaining that he did not appear to meet the minimum employment period and that we required payment of the filing fee or a completed waiver form. The Commission encouraged Mr Aimsley to give us a call if he wanted to pay the filing fee or discuss the issues with the application.

[4] On 29 June 2020, the Commission also attempted to contact Mr Aimsley’s representative, Employee Dismissal Claims, to make payment of the filing fee and discuss the minimum employment period for the application lodged. However, they did not answer. A voicemail message was left asking them to give the Commission a call to make payment and discuss the matter further.

[5] Later that day, the Commission emailed correspondence to Mr Aimsley’s nominated email address advising Mr Aimsley that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. A copy of the correspondence was also sent to his representative. The correspondence directed Mr Aimsley to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Aimsley that if he did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Aimsley’s nominated telephone number, requesting that he contact the Commission.

[6] On 13 July 2020, the Commission attempted to contact Mr Aimsley twice on his nominated telephone number. However, Mr Aimsley could not be reached. A voicemail message was left advising that based on what was written on the form F2 he did not appear to meet the minimum employment period and that payment or a completed waiver form had still not been received. A message was left requesting he call the Commission.

[7] On 13 July 2020, the Commission called Mr Aimsley’s representative to follow up on the incomplete application but they did not answer. A voicemail message was left explaining that the matter is at risk of being dismissed as the Mr Aimsley did not appear to meet the minimum employment period and payment has not been made. The Commission encouraged them to call the Commission to make payment, discontinue the application or discuss the matter further.

[8] To date, Mr Aimsley nor his representative has not replied 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 provides 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 Aimsley has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR721024>