Brent Williams v Cotecco Pty Ltd

[2020] FWC 823

[2020] FWC 823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Williams
v
Cotecco Pty Ltd
(U2020/111)

COMMISSIONER BISSETT MELBOURNE, 14 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 6 January 2020 Mr Brent Williams made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Williams advised that he commenced employment with Cotecco Pty Ltd on 14 October 2019 and that his dismissal took effect on 18 December 2019.

[3] On 7 January 2020 the Commission emailed correspondence to Mr Williams at his nominated email address advising that on the basis of the information contained in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Williams to file any documents and evidence to support his claim that he had served the minimum employment period and that if Mr Williams did not contact the Commission within 14 days, his application may be dismissed without further notice.

[4] Later that day, the Commission attempted to contact Mr Williams on his nominated telephone number in relation to the correspondence. A voicemail message was left requesting a return call.

[5] On 6 February 2020 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was left advising of the minimum employment period issue and requested that Mr Williams contact the Commission to discuss the issue.

[6] Later that day the Commission sent email correspondence to Mr Williams again advising that based on the information he had provided in his Form F2 it appeared that the Commission has no jurisdiction to deal with his application as he had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Mr Williams and had not been able to successfully contact him. That correspondence advised that unless Mr Williams contacted the Commission within 7 days and provided an explanation of why he did not respond to the direction in the first correspondence, his application would be determined on the material currently before the Commission without further reference to him.

[7] On 13 February 2020 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was left requesting an urgent return call and advising that the matter would be referred to a Member of the Commission to make a decision.

[8] To date, no response has been received by Mr Williams.

[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:

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] In the circumstances of this matter, I am satisfied Mr Williams has not completed the required minimum employment period.

[12] Section 587(1) of the FW 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.

[13] Having regard to the circumstances of this matter, I am satisfied that as Mr Williams has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, his application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 this effect will be issued with this decision.

COMMISSIONER

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