Brett Hamill v Crib Group

[2018] FWC 7435

[2018] FWC 7435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Hamill
v
Crib Group
(U2018/11037)

DEPUTY PRESIDENT DEAN SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 25 October 2018, Mr Brett Hamill made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hamill states that he commenced employment with Crib Group on 15 November 2017 and that his dismissal took effect on 15 October 2018.

[3] On 12 November 2018, Crib Group filed an Employer Response (form F3) objecting to the application on the ground that Mr Hamill had not met the minimum employment period. Crib Group submitted that it is a small business with fewer than 15 employees at the time of Mr Hamill’s termination.

[4] On 20 November 2018, correspondence was sent to Mr Hamill indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Hamill to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 28 November 2018, correspondence was sent to Mr Hamill noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Hamill was given until 4pm on
30 November 2018 to respond. Mr Hamill was advised that in the absence of any material being received, his application may be dismissed.

[6] Further attempts were made to contact Mr Hamill by telephone on 30 November and 5 December 2018.

[7] To date, Mr Hamill has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] 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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied Mr Hamill has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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