Bradley Turner v Statewide Contracting
[2022] FWC 2002
•1 August 2022
| [2022] FWC 2002 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bradley Turner
v
Statewide Contracting
(U2022/7180)
| COMMISSIONER bISSETT | MELBOURNE, 1 August 2022 |
Application for relief from unfair dismissal – minimum employment period – application out of time dismissal under s.587 at the Commission’s initiative.
On 16 July 2022, Mr Bradley Turner (Applicant) 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).
There were multiple issues with the Form F2 - Unfair Dismissal Application (Form F2) filed by the Applicant in that the application was lodged out of time and the Applicant did not meet the minimum employment period. The Applicant advised that he commenced employment with Statewide Contracting (Respondent) on 24 January 2022 and that his dismissal took effect on 18 February 2022.
On 18 July 2022, the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant did not answer the call. A voicemail message was left informing him that based on the information provided he had not served the minimum employment period and requested he contact the Commission.
Later that day the Commission sent email correspondence to the Applicant’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 the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.
On 19 July 2022 the Applicant contacted the Commission and confirmed his employment date as that given in the Form F2. The Commission explained to the Applicant that based on the information provided he did not meet the minimum employment period and in any event he had previously made a general protections application in which a certificate had been issued to enable him to commence court proceedings against the Respondent. The Applicant advised that he wanted to proceed with his unfair dismissal application but would seek legal advice on the matter.
Following the telephone call with the Applicant, on 19 July 2022 my chambers sent correspondence to the Applicant as follows:
Dear Mr Turner
I refer to your application for a remedy for unfair dismissal.
Your application has been referred to Commissioner Bissett, National Practice Leader for unfair dismissal matters.
The Commissioner understands that you have been advised by Commission staff that you have not served the minimum employment period necessary to allow you to make a unfair dismissal application. You have advised staff that you wish to have your application considered.
To make an application for unfair dismissal the Fair Work Act 2009 (FW Act) at section 383 requires that you must have served the minimum employment period with your employer for the application to be considered. The minimum employment period is 6 months (or 12 months if the business is a small business). If you do not meet this requirement you are not protected from unfair dismissal and your application cannot proceed.
In your application you indicated that you worked for Statewide Contracting from 24 January 2022 to 18 February 2022, a period of 2 weeks and 1 day. Clearly this is not at least the minimum employment period of 6 months.
Whilst the Commissioner understands that you want to have your application heard it cannot be heard as you have not met the minimum employment period. For this reason Commissioner Bissett is considering dismissing your application without further hearing unless you can produce evidence that you worked for Statewide Contracting for at least 6 months.
You should be aware that, even if you can produce the evidence requested above:
·your application has been filed outside the 21 days and an extension of time will need to be sought.
·Further, it appears you have made a general protections application. That application resulted in you being issued with a certificate to enable you to commence court proceedings. The FW Act does not allow you to make multiple applications in relation to the same dismissal which means it is unlikely in any event that the unfair dismissal application can proceed.
In the first instance however the Commissioner requires you to produce evidence that you have completed the minimum employment period with Statewide Contracting of at least 6 months. This information is required by 4.00pm Thursday 21 July 2022. On receipt of the required information Commissioner Bissett will decide if your application can proceed or if it should be dismissed. If you do not produce the required information Commissioner Bissett will dismiss your application without further correspondence.
You will be provided with the outcome of the Commissioner’s consideration.
No response was received from the Applicant by that date.
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.
In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his/her application has no reasonable prospects of success.
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.
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.
Having regard to the circumstances of this matter I am satisfied that as the Applicant 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[1] to this effect will be issued shortly.
COMMISSIONER
[1] PR744290
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