Connor Power v Pickering Transport Group

[2020] FWC 2401

[2020] FWC 2401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Connor Power
v
Pickering Transport Group
(U2020/4665)

COMMISSIONER BISSETT MELBOURNE, 8 MAY 2020

Application for an unfair dismissal remedy.

[1] On 14 April 2020, Mr Connor Power 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).

[2] The application form filed by Mr Power was incomplete in that he did not provide the commencement date of his employment (Question 1.1. of the Form F2 Unfair Dismissal Application).

[3] On 15 April 2020, the Commission attempted to contact Mr Power on his nominated telephone number to request the missing details. A voicemail message was left advising Mr Power that his application was incomplete as he not provided the commencement date of his employment and requested that Mr Power contact the Commission to provide this information.

[4] Later that day, the Commission emailed correspondence to Mr Power advising that he was to provide further details as his application was incomplete. That correspondence also advised that if the commencement date of his employment (Question 1.1 of the Form F2) was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Power’s nominated telephone number, requesting that he contact the Commission.

[5] On 21 April 2020, Mr Power contacted the Commission via telephone. Mr Power advised that he commenced employment with Pickering Transport Group on 7 October 2019 and that his dismissal took effect on 3 April 2020. The Commission advised Mr Power that he had not served the minimum employment period. Mr Power said that he had previously worked for the employer in 2018, but there had been a break in his employment. Mr Power was told that he should seek legal advice to see if this could be counted towards his current employment period and was provided the telephone number for a community legal centre. Mr Power advised the Commission that he would seek legal advice and contact the Commission in due course. Mr Power was advised that if he did not contact the Commission within 14 days, the application may be dismissed without further notice.

[6] On 27 April 2020, the Commission telephoned Mr Power. Mr Power advised he had not yet received legal advice and was waiting for the community legal centre to return his call. Mr Power was advised by the Commission that in lieu of receiving documents/evidence to support his claim that he had served the required minimum employment period, his application may be imminently dismissed by a member of the Commission.

[7] On 29 April 2020, Mr Power telephoned the Commission. Mr Power advised that he had sought legal advice which confirmed he had not served the minimum employment period. The Commission staff member explained to Mr Power that if he had not met the minimum employment period, he was not eligible to make this application, and that if he proceeded with the matter it will likely be dismissed. It was explained to Mr Power that such a decision by the Commission would be published and his filing fee could not be refunded if a discontinuance was not filed by Mr Power. Mr Power did not discontinue his application over the phone and said he would contact the Commission about what he would like to do in future. The Commission staff member told Mr Power that a decision on his application would likely be made in the coming days and that if he wished to discontinue his application, he needed to urgently contact the Commission.

[8] To date, Mr Power has not provided the Commission with supporting documentation/evidence showing that he has met the minimum employment period.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Mr Power has not completed the required minimum employment period and his application has no reasonable prospects of success.

[11] 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.

[12] 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.

[13] Having regard to the circumstances of this matter I am satisfied that as Mr Power 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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