Brian Kane v BAE Systems Australia

[2013] FWC 2767

[2013] FWC 2767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Kane
v
BAE Systems Australia
(U2013/444)

COMMISSIONER JONES MELBOURNE, 9 MAY 2013

Application Dismissed Pursuant to s.587 on Own Motion.

[1] On 15 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Brian Kane (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes he commenced employment with BAE Systems Australia (the Respondent) on 17 September 2012 and his dismissal took effect on 15 February 2013.

[3] On 19 February 2013, correspondence was sent to the Applicant pointing out that on the basis of the information contained in the Form 2, the Applicant had not served the minimum employment period according to the dates noted on the Application. The correspondence required the Applicant to advise the Commission in 14 days whether he wished to proceed with his Application.

[4] On 21 March 2013, further correspondence was sent to the Applicant requiring him to advise the Commission within 14 days whether he wished to proceed with his Application. To date no response has been received.

[5] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[6] Section 383 of the Act provides:

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.

[7] I also note that on the basis of the information contained in the Application, the Applicant’s dismissal took effect on 15 February 2013, the same day the Application was lodged with the Commission.

[8] Subsection 394(1) of the Act provides that a person who has been dismissed may apply for an unfair dismissal remedy. Subsection 394(2) provides that an application must be made within 21 days after the dismissal took effect. S.36(1) of the Acts Interpretation Act 1901 (Cth) deals with the calculation of time. Item 6 provides that where the period is expressed to begin after a specified day, the time period does not include that day. Consequently, an application must be made within a time period, after the dismissal took effect.

[9] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[10] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[11] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period. I am also satisfied that the Application was made prematurely and that the application is not valid.

[12] Consequently, I have decided to dismiss the application pursuant to s.587 of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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