Craig Gerhard v Zizzis Italian Bar & Grill

[2014] FWC 3787

[2014] FWC 3787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Gerhard
v
Zizzis Italian Bar & Grill
(U2014/4116)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 JUNE 2014

Application for relief from unfair dismissal.

[1] On 29 January 2014, Mr Craig Gerhard made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Gerhard advised that he commenced employment with Zizzis Italian Bar & Grill on 17 September 2013 and that his dismissal took effect on 20 January 2014.

[3] On 28 March 2014, correspondence was sent to Mr Gerhard pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Gerhard to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 May 2014 further correspondence was sent to Mr Gerhard allowing a further 14 days in which to reply, after which time the application would be dismissed. Mr Gerhard replied to this correspondence advising that he understood that he does not qualify to proceed with his application.

[5] On 9 May and 21 May 2014, further correspondence was sent to Mr Gerhard informing him how to discontinue his application. A notice of discontinuance was attached to this correspondence.

[6] Mr Gerhard did not reply to that correspondence.

[7] Section 382 of the 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.

[8] Section 383 of the Act sets out the 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.

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

[10] Section 587(1) of the Act provides:

(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.

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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