Christopher Robert Lamont v Sato Vicinity Pty Ltd

[2023] FWC 78

[2023] FWC 78

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Robert Lamont
v

Sato Vicinity Pty Ltd

(U2022/11903)

COMMISSIONER BISSETT MELBOURNE, 12 JANUARY 2023

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

1. On 16 December 2022 Mr Christopher Robert Lamont 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 Lamont advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Sato Vicinity Pty Ltd on 14 November 2022 and that his dismissal took effect on 6 December 2022.

1. On 18 December 2022 the Commission emailed correspondence to Mr Lamont’s nominated email address advising Mr Lamont that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lamont to file any documents/evidence to support his 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. On 19 December 2022 the Commission attempted to contact Mr Lamont on his nominated telephone number. A voicemail message was left requesting Mr Lamont contact the Commission to confirm the dates provided in the application and advising that an email had been sent with further details.

1. Later that day correspondence was also emailed to Mr Lamont on his nominated email address in relation to the application fee. This correspondence also advised that the information was still required for the application to proceed and requested Mr Lamont contact the Commission in relation to the matter.

1. As the required documentation was not received, on 5 January 2023 the Commission attempted to contact Mr Lamont on his nominated telephone number. However, Mr Lamont could not be reached. A voicemail message was left requesting that Mr Lamont urgently contact the Commission in relation to the dates of employment. The voicemail also advised that based on the dates provided it appeared that the minimum employment period may not have been met and that the matter was at risk of being dismissed if no contact was received.

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

COMMISSIONER

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