Cheyne Howard v Broome Toyota

[2023] FWC 698

[2023] FWC 698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Cheyne Howard
v

Broome Toyota

(U2023/1519)

COMMISSIONER BISSETT MELBOURNE, 23 MARCH 2023

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

1. On 24 February 2023 Mr Cheyne Howard 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 Howard advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Broome Toyota on 24 November 2022 and that his dismissal took effect on 7 February 2023

1. On 27 February 2023 the Commission attempted to contact Mr Howard on his nominated telephone number. No voicemail message was able to be left, an automated message stated that the call could not be completed at this time and to try again later.

1. Later that day the Commission emailed correspondence to Mr Howard’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 Howard to file any documents/evidence to support a 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 13 March 2023 the Commission attempted to contact Mr Howard on his nominated telephone number. However, Mr Howard could not be reached and no voicemail message was able to be left. An automated message stated that the call could not be completed at this time and to try again later.

1. To date Mr Howard 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. I am satisfied Cheyne Howard has not completed the required minimum employment period.

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. As Mr Howard has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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