Daniel Cross v Bearing Wholesalers

[2022] FWC 2604

[2022] FWC 2604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Daniel Cross
v

Bearing Wholesalers

(U2022/8816)

COMMISSIONER BISSETT MELBOURNE, 28 SEPTEMBER 2022

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1]       On 30 August 2022 Mr Daniel Cross 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 Cross advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Bearing Wholesalers on 27 June 2022 and that his dismissal took effect on 19 August 2022.

[3]       On 31 August 2022 the Commission attempted to contact Mr Cross on his nominated telephone number. A voicemail message was left requesting Mr Cross return the call to the Commission as it appeared he did not meet the minimum employment period.

[4]       Later that day, the Commission emailed correspondence to Mr Cross’s nominated email address advising Mr Cross that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Cross to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Cross did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5]       As the required documentation was not received, on Monday 12 September 2022, the Commission attempted to contact Mr Cross via their nominated telephone number. However, Mr Cross could not be reached. A voicemail message was left requesting that he call the Commission regarding the minimum employment period.

[6]       To date, Mr Cross has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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 prospect of success.

[10]     Having regard to the circumstances of this matter I am satisfied that as Mr Cross 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[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR746270

Printed by authority of the Commonwealth Government Printer

<PR746269>