Christian Speciale v Becquet Mechanical Pty Ltd

[2018] FWC 7434

[2018] FWC 7434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christian Speciale

v

Becquet Mechanical Pty Ltd

(U2018/8747)

Deputy President Dean SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy.

1. On 24 August 2018, Mr Christian Speciale made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

1. Mr Speciale states that he commenced employment with Becquet Mechanical Pty Ltd (Becquet) on 12 January 2018 and that his dismissal took effect on 1 August 2018.

1. On 26 October 2018, Becquet filed an Employers Response (form F3) objecting to the application on the grounds that Mr Speciale had not met the minimum employment period. Becquet submitted that it is a small business with fewer than 15 employees at the time of Mr Speciale’s termination. Becquet further submitted that Mr Speciale’s dismissal took effect on 31 July 2018 and as such the application was filed outside of the 21 day time limit.

1. On 16 November 2018, correspondence was sent to Mr Speciale and his legal representative indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Speciale to file a statement within seven days to support his claim of having served the minimum employment period.

1. On 28 November 2018, correspondence was sent to Mr Speciale and his legal representative noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Speciale was given until 4pm on 30 November 2018, to respond. Mr Speciale was advised that in the absence of any material being received, his application may be dismissed.

1. On 30 November the Commission spoke with Mr Speciale’s legal representative who confirmed that they had received the Commission’s correspondence and were aware of the filing deadline of 4pm that day.

1. A final attempt was made to contact both Mr Speciale and his representative by telephone on 5 December 2018.

1. To date, Mr Speciale has not responded to the Commission.

1. Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

1. 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.

1. 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.

1. In the circumstances of this matter, I am satisfied Mr Speciale has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702922>