Cody-Lee Michael Doubleday v Mountain Trail Rv Pty Ltd

[2022] FWC 1251

[2022] FWC 1251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Cody-Lee Michael Doubleday
v

Mountain Trail Rv Pty Ltd

(U2022/5058)

COMMISSIONER O’NEILL MELBOURNE, 23 MAY 2022

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

1. On 4 May 2022, Mr Cody-Lee Michael Doubleday 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 Doubleday advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mountain Trail Rv Pty Ltd on 13 December 2021 and that he was notified of his dismissal on 3 May 2022.

1. On 5 May 2022, the Commission attempted to contact Mr Doubleday on his nominated telephone number. A voicemail message was left requesting a call back to the Commission to discuss his employment dates as the minimum employment period had not been met.

1. Later that day, the Commission emailed correspondence to Mr Doubleday’s nominated email address advising him that on the basis of the information provided in his Form F2 he had not served the minimum employment period. The correspondence directed Mr Doubleday to file any documents/evidence to support his claim that they 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 5 May 2022, Mr Doubleday emailed the Commission in response to the issue raised concerning his serving the minimum employment period. Mr Doubleday attached his termination of employment notice which is dated 3 May 2022. Based on the information contained in this termination of employment letter and the dates provided in the F2 application, Mr Doubleday has not served the minimum employment period.

1. On 9 May 2022 Mr Doubleday filed an amended Form F2 Unfair Dismissal Application. The Amended F2 states that 13 December 2021 was his first working day, however the employment contract was signed on 10 December 2021. Mr Doubleday now says that dismissal took effect on 15 May 2022. The amended dates provided in this second Form F2 still do not meet the minimum employment period.

1. As the required documentation proving the minimum employment period was served was not received, on 17 May 2022 the Commission attempted to contact Mr Doubleday via his nominated telephone number. However, Mr Doubleday could not be reached. A voicemail message was left requesting a call back to the Commission to discuss the minimum employment period and alternate application options.

1. To date, Mr Doubleday 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 of at least the minimum employment period.

1. In the circumstances of this matter, I am satisfied Mr Doubleday 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 prospect of success.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Doubleday 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 to this effect will be issued shortly.

COMMISSIONER

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