Cory Monckton v Barrei Pty Ltd T/A Cap Pipe

[2020] FWC 4651

[2020] FWC 4651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cory Monckton
v
Barrei Pty Ltd T/A Cap Pipe
(U2020/10494)

COMMISSIONER BISSETT MELBOURNE, 23 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 3 August 2020 Mr Cory Monckton 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] Mr Monckton advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Barrei Pty Ltd T/A Cap Pipe on 2 June 2020 and that his dismissal took effect on 3 August 2020.

[3] On 3 August 2020 the Commission contacted Mr Monckton on his nominated telephone number. The Commission advised Mr Monckton that based on the information in his Form F2 he had not served the minimum employment period. Mr Monckton advised the Commission that he wished to proceed with his application.

[4] On 4 August 2020 the Commission emailed correspondence to Mr Monckton’s nominated email address advising Mr Monckton that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Monckton to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Monckton did not contact the Commission within 14 days, the application may be dismissed without further notice. No submissions were received.

[5] As the required documentation was not received, on 17 August 2020 the Commission emailed correspondence to Mr Monckton’s nominated email address advising that the basis of the information provided in the Form F2, he had not served the minimum employment period. That correspondence advised if he had not met the minimum employment period, the Commission cannot hear his unfair dismissal application. That correspondence directed Mr Monckton to file any submissions or evidence that he has served the minimum employment period by noon on 24 August 2020.

[6] As Mr Monckton did not respond to the correspondence, on 24 August 2020 the Commission emailed correspondence to him advising that Commissioner Bissett was considering dismissing his application on the grounds that it has no reasonable prospects for success. That correspondence directed Mr Monckton to reply by 28 August 2020 as to why his application should not be dismissed.

[7] Later that day, Mr Monckton emailed correspondence to the Commission providing submissions as to the merit of his unfair dismissal application. The submissions did not address the issue of the minimum employment period.

[8] 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.

[9] Section 382 of the FW Act states that:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period;…

[underlining added]

[10] The minimum employment period is set out in s.383 of the FW Act 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.

[11] Mr Monckton has not disputed that he does not meet the minimum employment period required to make a valid application to the Commission. He has provided submissions to the Commission however these did not address the issue he was directed to respond to, namely the minimum employment period.

[12] For these reasons I have decided to dismiss Mr Monckton’s application for unfair dismissal as he has not served the minimum employment period necessary to make a valid application to the Commission.

[13] Section 587(1) of the FW Act states:

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.

[14] As the minimum employment period has not been met, the application has no reasonable prospects 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

Printed by authority of the Commonwealth Government Printer

<PR722363>

 1   PR722364.