Darren Horley v Barrasons Engineering Pty Ltd

[2020] FWC 1829

[2020] FWC 1829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Horley
v
Barrasons Engineering Pty Ltd
(U2020/2272)

COMMISSIONER BISSETT MELBOURNE, 7 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 28 February 2020, Mr Darren Horley made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Horley advised that he commenced employment with Barrasons Engineering Pty Ltd (Respondent) on 14 October 2019 and that his dismissal took effect on 7 February 2020.

[3] On 28 February 2020 the Commission telephoned Mr Horley to discuss his application. Mr Horley was advised that based on the information in his application he did not meet the minimum employment period.

[4] On the same date, the Commission sent email correspondence to Mr Horley’s nominated email address advising that on the basis of the information contained in his application, he had not served the minimum employment period. The correspondence required Mr Horley to file any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Horley did not respond.

[5] On 17 March 2020, the Commission made a further attempt to contact Mr Horley on his nominated mobile number. Mr Horley did not answer the call and a voicemail message was left requesting a return call. This was followed by an SMS notification requesting that Mr Horley contact the Commission.

[6] Later that day the Commission sent further correspondence to Mr Horley’s nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s correspondence, his application would be determined based on the material before the Commission.

[7] On 27 March 2020 the Commission made a final attempt to contact Mr Horley by telephone. Mr Horley answered the call and confirmed that the employment dates specified in his application were correct. He said that he understood he had not satisfied the minimum employment period but wanted to proceed with his application.

[8] 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.

[9] 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.

[10] 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 prospects of success.

[11] In the circumstances of this matter, I am satisfied Mr Horley has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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