Bruce McDonald v Nue Technologies

[2019] FWC 1134

[2019] FWC 1134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bruce McDonald
v
NUE Technologies
(U2018/12198)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 26 November 2018, Mr Bruce McDonald made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr McDonald did not respond to the question about when he commenced working for NUE Technologies (NUE). However, he did note that his dismissal took effect on 5 November 2018 and that the reason given for the dismissal by NUE was “dismissal with [sic] the three month trial period.” It appears Mr McDonald has noted that he was dismissed within three months of commencing employment with NUE.

[3] On 27 November 2018, the Commission attempted to telephone Mr McDonald, however this was unsuccessful and no voicemail message could be left. Following this, email correspondence was sent to Mr McDonald’s nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr McDonald to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period. It was noted that in the absence of a response, Mr McDonald’s application may be dismissed.

[4] On 20 December 2018, further email correspondence was sent to Mr McDonald. It was advised that unless he contacted the Commission within seven days with an acceptable explanation of why he did not respond to the direction contained in the email of 27 November 2018, his application would be determined on the material currently before the Commission, without further reference to him.

[5] On 28 December 2018, Mr McDonald sent an email to the Commission which advised he was preparing documentation outlining the circumstances, that this was with his lawyer who was unavailable until 7 January 2019 and he trusted this would be satisfactory.

[6] On 8 January 2019, the Commission sent further email correspondence to Mr McDonald requesting he contact the Commission at his earliest convenience regarding the outstanding information. It was noted that the telephone contact number Mr McDonald had provided the Commission was out of service.

[7] To date, the Commission has not received any documentation or further correspondence from Mr McDonald.

[8] Section 382 of the 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.

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

DEPUTY PRESIDENT

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