Bradley-Ray McArthur v Vegas Hotel T/A Infinity Security Group

[2021] FWC 1120

[2021] FWC 1120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley-Ray McArthur
v
Vegas Hotel T/A Infinity Security Group
(U2021/883)

COMMISSIONER BISSETT MELBOURNE, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 4 February 2021 Mr Bradley-Ray McArthur 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 McArthur advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Vegas Hotel T/A Infinity Security Group on 10 November 2020 and that his dismissal took effect on 2 January 2021.

[3] On 4 February 2021 the Commission attempted to contact Mr McArthur on his nominated telephone number. A voicemail message was left informing Mr McArthur that based on the information provided he had not served the minimum employment period and requested he contact the Commission if the dates provided were incorrect.

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

[5] As the required documentation was not received, on 17 February 2021 the Commission attempted to contact Mr McArthur via his nominated telephone number. However, Mr McArthur could not be reached. A voicemail message was left requesting that he contact the Commission and advising that his application was at risk of being dismissed.

[6] Later that day, Mr McArthur emailed the Commission informing that he wished to make a general protections application. The Commission responded with information about how to lodge a general protections application. Mr McArthur was also requested to advise the Commission about his Unfair Dismissal application by the close of business on Monday 22 February 2021.

[7] To date, Mr McArthur has not replied to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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 prospect of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr McArthur has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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