Daniel Cross v Bearing Wholesalers Summary

[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>

The Fair Work Commission assessed the case of Daniel Cross, who sought relief for unfair dismissal against Bearing Wholesalers. Mr Cross alleged that he was dismissed on 19 August 2022 after starting employment on 27 June 2022. The Commission noted that under the Fair Work Act 2009, an employee must complete a minimum employment period to be protected from unfair dismissal. Mr Cross was initially contacted by the Commission as it appeared he had not met this requirement. Despite multiple attempts to contact him and requests for evidence, Mr Cross did not respond.

The central legal issue was whether Mr Cross had completed the requisite minimum employment period to warrant protection under the Fair Work Act. The minimum period for a non-small business employer is six months, whereas for a small business employer, it is one year. Given that Bearing Wholesalers is classified as a small business employer, the pivotal question was whether Mr Cross had worked for at least twelve months. The Commission dismissed the application as it lacked reasonable prospects of success due to Mr Cross's failure to meet the minimum employment period.

The Commission concluded that Mr Cross had not completed the required minimum employment period and, therefore, his application had no reasonable prospect of success. The dismissal was made under section 587(1)(c) of the Fair Work Act, which allows the Commission to dismiss an application if it has no reasonable prospect of success. Consequently, the application was dismissed, and an order to this effect was issued.

Daniel Cross v Bearing Wholesalers

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established