Cyrille Gilles v Cozwine

[2018] FWC 2141

[2018] FWC 2141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cyrille Gilles
v
Cozwine
(U2018/2251)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 APRIL 2018

Application for relief from unfair dismissal – Application dismissed.

[1] On 5 March 2018, Mr Cyrille Gilles made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair dismissal application, Mr Gilles advised that he commenced employment with Cozwine on 16 February 2018. Mr Gilles stated he was notified of dismissal on 2 March 2018 and that his dismissal took effect on 26 February 2018.

[3] On 6 March 2018, Fair Work Commission (the Commission) attempted to contact Mr Gilles via telephone. As he did not answer, a voicemail message was left for him requesting he return the Commission’s call. On the same day, correspondence was sent to Mr Gilles’ nominated email address advising that on the basis of the information contained in the application, he had not served the minimum employment period required by the Act. The correspondence directed Mr Gilles to file in the Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.

[4] On 5 April 2018, the Commission again contacted Mr Gilles by telephone. As he did not answer, a voicemail message was left for Mr Gilles requesting he return the Commission’s call regarding the minimum employment period. On the same day, further correspondence was sent to Mr Gilles by email which advised that unless he contacted the Commission within 7 days with an explanation as to why he had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[5] On 13 April 2018, the Commission made a final attempt to contact Mr Gilles by telephone regarding his application. A voicemail message was left for him requesting that he return the Commission’s call. The voicemail also advised that his application may be dismissed on the basis of the information currently before the Commission due to being unable to contact him since the date of lodgement.

[6] To date, Mr Gilles has not responded to the Commission’s 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:

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.

[9] 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.

[10] Having regard to the circumstances of this matter, I am satisfied that as Mr Gilles has not completed the required minimum employment period, that his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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