Daniel Petkovic v Metro Trains T/A Level Crossing Removal Authority

[2018] FWC 4929

[2018] FWC 4929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Petkovic

v

Metro Trains T/A Level Crossing Removal Authority

(U2018/7176)

COMMISSIONER WILSON MELBOURNE, 23 August 2018

Application for an unfair dismissal remedy – Application dismissed.

1. On 11 July 2018, Mr Daniel Petkovic made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. In his Form F2 – Unfair Dismissal Application, Mr Petkovic advised that he commenced employment with Metro Trains T/A Level Crossing Removal Authority (Metro Trains) on 25 October 2017. Mr Petkovic further advised that he was notified of his dismissal on 16 April 2018 and that it took effect the same day.

1. On 16 July 2018, the Commission attempted to telephone Mr Petkovic. This was unsuccessful and a voicemail was left requesting his return call. Following this, correspondence was sent to Mr Petkovic’s nominated email address advising that on the basis of the information provided in the application, he had not served the minimum employment period required by the Act. The correspondence directed Mr Petkovic to file in the Commission, within 14 days, any documents or evidence to support his claim of having served the minimum employment period.

1. On 24 July 2018, the Commission again attempted to telephone Mr Petkovic and left a voicemail requesting a return call.

1. On 9 August 2018, a further attempt to telephone Mr Petkovic was made and a voicemail was left advising him that his matter may be dismissed if he did not make contact with the Commission. Following this, a final letter was sent to Mr Petkovic via his nominated email address advising him that unless he contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 16 July 2018, the application would be determined based on the material before the Commission.

1. On 15 August 2018, the Commission made a final attempt to telephone Mr Petkovic, which was unsuccessful, and a voicemail was left requesting his return call.

1. To date, Mr Petkovic has not responded to the Commission’s correspondence.

1. 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.

1. 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.

1. 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.

1. Having regard to the circumstances of this matter, I am satisfied that as Mr Petkovic has not completed the required minimum employment period, 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.

COMMISSIONER

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