Cheyne Dobson v Allstaff Australia

[2020] FWC 776

[2020] FWC 776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheyne Dobson
v
Allstaff Australia
(U2020/72)

DEPUTY PRESIDENT DEAN SYDNEY, 13 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 January 2020, Mr Cheyne Dobson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dobson advised that he commenced employment with Allstaff Australia on 15 October 2019 and that his dismissal took effect on 20 December 2019.

[3] 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.

[4] 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.

[5] On 6 January 2020, Mr Dobson was advised by email correspondence that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Dobson to advise the Commission within 14 days whether he wished to proceed with his application. The Commission also attempted to contact Mr Dobson on the mobile telephone number provided in his application. That call was unanswered and a voice message was left requesting that Mr Dobson contact the Commission. Mr Dobson did not respond to both the email correspondence and voicemail message.

[6] On 6 February 2020, the Commission made another attempt to contact Mr Dobson without success and further email correspondence was sent to him allowing a further 7 days to respond. He was advised that absent a response may result in his application being dismissed.

[7] To date, Mr Dobson has not responded to any of the Commission’s correspondence.

[8] 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.

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

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

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