Crawford Elias v Kingsmore Meats Pty Ltd T/A Kingsmore Meats

[2018] FWC 3381

[2018] FWC 3381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Crawford Elias
v
Kingsmore Meats Pty Ltd T/A Kingsmore Meats
(U2018/4073)

DEPUTY PRESIDENT DEAN SYDNEY, 8 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 18 April 2018, Mr Crawford Elias made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Elias’ application states that he commenced employment with Kingsmore Meats Pty Ltd T/A Kingsmore Meats (Kingsmore Meats) on 9 May 2017 and that his dismissal took effect on 28 March 2018.

[3] On 27 April 2018, Kingsmore Meats filed an Employers Response (form F3) objecting to the application on the grounds that Mr Elias had not met the minimum employment period. Kingsmore Meats submitted that it was a small business with fewer than 15 employees at the time of Mr Elias’ dismissal.

[4] On 15 May 2018, the matter was listed for Conciliation before a Fair Work Commission Conciliator. Mr Elias was uncontactable at the time and the Conciliation did not proceed.

[5] On 24 May 2018, correspondence was sent to Mr Elias indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Elias to file a statement within seven days to support his claim of having served the minimum employment period.

[6] On 1 June 2018, correspondence was sent to Mr Elias noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Elias was given until 4pm, 5 June 2018, to respond. Mr Elias was advised that in the absence of any material being received, his application may be dismissed.

[7] To date, Mr Elias has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] Section 383 of the Act sets out the minimum employment period:

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.

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

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.

[11] In the circumstances of this matter, I am satisfied Mr Elias has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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