Christopher Bergin v Ridge Projects Pty Ltd

[2022] FWC 2218

[2022] FWC 2218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Christopher Bergin

v

Ridge Projects Pty Ltd

(U2022/7966)

cOMMISSIONER bISSETT MELBOURNE, 19 AUGUST 2022

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

1. On 1 August 2022, Mr Christopher Bergin (the Applicant) 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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he was due to commence employment with Ridge Projects Pty Ltd on 25 July 2022 and he was notified of the dismissal on 22 July 2022.

1. On 2 August 2022, the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising the Applicant that he had not served the minimum employment period and requesting the Applicant call the Commission back to discuss this matter.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant 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 16 August 2022 the Commission attempted to contact the Applicant on his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting he contact the Commission in relation to his application otherwise the matter was at risk of being dismissed if no contact was made.

1. To date, the Applicant has not replied to the Commission’s correspondence nor has he contacted the Commission about his application.

2. Section 382 of the FW 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.

1. In the circumstances of this matter, I am satisfied the applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

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 that:

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

COMMISSIONER

[1] PR744996

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