Bradley Hooley v Cuscal T/A Cuscal Limited

[2019] FWC 5506

[2019] FWC 5506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Hooley
v
Cuscal T/A Cuscal Limited
(U2019/6927)

DEPUTY PRESIDENT DEAN SYDNEY, 8 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 25 June 2019, Mr Bradley Hooley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hooley advised that he commenced employment with Cuscal T/A Cuscal Limited on 7 January 2019 and that his dismissal took effect on 21 June 2019.

[3] 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.

[4] 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.

[5] On 25 June 2019, correspondence was sent to Mr Hooley indicating that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Hooley to advise the Commission within 14 days whether he wished to proceed with his application. The Commission also attempted to contact Mr Hooley by telephone, however this was unsuccessful.

[6] On 22 July 2019 further correspondence was sent to Mr Hooley allowing a further 7 days to respond. He was advised that in the absence of a reply, his application may be dismissed.

[7] To date, Mr Hooley has not responded to any of the Commission’s correspondence.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Mr Hooley has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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