Brock Schloeffel v Tunstall Australiasia

[2022] FWC 3210

[2022] FWC 3210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brock Schloeffel
v

Tunstall Australiasia

(U2022/10792)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

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

1. On 10 November 2022 Mr Brock Schloeffel made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Mr Schloeffel advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Tunstall Australiasia on 26 April 2022 and that his dismissal took effect on 25 October 2022.

1. On 11 November 2022 the Commission sent correspondence to Mr Schloeffel’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 Schloeffel to file any documents or other 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 his application may be dismissed without further notice.

1. As the required documentation was not received, on 22 November 2022 the Commission attempted to contact Mr Schloeffel on his nominated telephone number. However, Mr Schloeffel could not be reached. A voicemail message was left requesting that Mr Schloeffel urgently contact the Commission to discuss his case as it appears he has not met the minimum period and if he does not respond his case may be dismissed.

1. To date Mr Schloeffel has not responded 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.

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 as follows:

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. In the circumstances where I am satisfied Mr Schloeffel has not completed the required minimum employment period under the FW Act, I have determined that his application has no reasonable prospect of success.

1. As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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