Brian Robert Hansford v Carrot Kings Myalup Pty Ltd T/A the Crooked Carrot

[2022] FWC 2068

[2022] FWC 2068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brian Robert Hansford
v

Carrot Kings Myalup Pty Ltd T/A The Crooked Carrot

(U2022/6843)

COMMISSIONER BISSETT MELBOURNE, 5 AUGUST 2022

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 5 July 2022, Mr Brian Robert Hansford 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).

1. Mr Hansford advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Carrot Kings Myalup Pty Ltd T/A The Crooked Carrot on 28 December 2021 and that his dismissal took effect on 21 June 2022.

1. On 18 July 2022, the Commission contacted Mr Hansford on his nominated telephone number. The Commission advised Mr Hansford that he had not served the minimum employment period. Mr Hansford had sought legal advice and thought he had to have worked less than 6 months to be eligible. The Commission explained the minimum employment period is 6 months or, if his employer is a small business, 12 months. Mr Hansford said he would have to confirm when his start date was. The Commission advised that he had 14 days to provide the require information or discontinue his case.

1. Later that day, the Commission emailed correspondence to Mr Hansford’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 Hansford to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As the required documentation was not received, on 2 August 2022 the Commission attempted to contact Mr Hansford via his nominated telephone number. However he could not be reached. A voicemail message was left requesting Mr Hansford urgently contact the Commission about his case and if he does not respond, the Commission may make a decision to dismiss his case.

1. To date, Mr Hansford has not replied to the Commission’s correspondence.

1. 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.

1. In the circumstances of this matter, I am satisfied Mr Hansford has not completed the required minimum employment period and his application has no reasonable prospects of success.

1. 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.

1. 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.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Hansford 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 to this effect will be issued shortly.

COMMISSIONER
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