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Bond v Carbridge Pty Ltd T/A Carbridge

Bond v Carbridge Pty Ltd T/A Carbridge

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Case Copied 29 May 2024 10 min read

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[2024] FWC 1302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alan Geoffrey Bond
v

Carbridge Pty Ltd T/A Carbridge

(U2024/3561)

DEPUTY PRESIDENT EASTON

SYDNEY, 29 MAY 2024

Application for an unfair dismissal remedy – minimum employment period – section 587 – no reasonable prospects of success – dismissal of an application without a hearing – procedural fairness

On 29 March 2024, Mr Alan Geoffrey Bond made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009. Mr Bond advised in his Form F2 Unfair Dismissal Application that he commenced employment with Carbridge Pty Ltd on 27 November 2023 and that his dismissal took effect on 22 March 2024.

On the information provided by Mr Bond he worked for Carbridge for almost 4 months.

Sections 382 and 383 of the Fair Work Act 2009 (the Act) provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines 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.

A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. The size of the employer’s business is therefore very important for applicants who were employed for more than 6 months but less than 12 months. In cases requiring consideration of the minimum employment period, the size of the employer’s business can be fertile ground for disagreement.

In Mr Bond’s case it does not matter whether Carbridge is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

Commission staff sought further information from Mr Bond about whether he had served the minimum employment period:

(a)on 5 April 2024 the Commission attempted to contact Mr Bond on his nominated telephone number. A voicemail message was left explaining the minimum employment period requirement and requesting that Mr Bond contact the Commission to discuss his matter;

(b)later that day the Commission sent correspondence by email to Mr Bond indicating that the information provided in his Form F2 suggests that he had not served the minimum employment period. The correspondence directed Mr Bond to file any documents or evidence to support his claim that he had served the required minimum employment period. The correspondence also contained a warning that if he did not contact the Commission within 14 days his application might be dismissed without further notice;

(c)on the same day, Mr Bond responded asking for the Commission to obtain CCTV footage of the incident that led to his dismissal;

(d)later that day, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 1302
Decision Date: 29 MAY 2024

CaseChat Overview and Summary

Alan Geoffrey Bond applied to the Fair Work Commission for an unfair dismissal remedy under the Fair Work Act 2009. Carbridge Pty Ltd T/A Carbridge opposed the application. Mr Bond claimed that he had been unfairly dismissed from his employment, which commenced on 27 November 2023 and ended on 22 March 2024. The Commission was required to determine whether Mr Bond was eligible to bring an unfair dismissal claim under the Act. The eligibility to bring such a claim depends on whether Mr Bond had completed the minimum employment period, defined as six months for employers that are not small business employers.

The Commission exercised its discretion under s.587 of the Act to dismiss Mr Bond’s application without a hearing. The key issue was whether Mr Bond had completed the minimum employment period of six months. Mr Bond had indicated in his application that he had not completed this period. Despite multiple opportunities to provide evidence or information to the contrary, Mr Bond did not address this issue in his correspondence with the Commission. Instead, he focused on the fairness of his dismissal. The Commission was satisfied that Mr Bond's application had no reasonable prospects of success and dismissed the application on its own initiative under s.587(1)(c) of the Act.

The Deputy President concluded that the application did not meet the threshold requirement of having completed the minimum employment period, and there were no disputed facts or potential disputes that could change the outcome of the application. The dismissal was appropriate as it avoided unnecessary expenditure of the Commission's and the parties' resources on a claim that had no reasonable prospect of success. The Deputy President made an order to this effect.

Orders