Darryl Mann v Urgent Couriers

[2020] FWC 1040

[2020] FWC 1040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darryl Mann
v
Urgent Couriers
(U2020/86)

COMMISSIONER BISSETT MELBOURNE, 26 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 3 January 2020 Mr Darryl Mann 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 (Form F2), Mr Mann advised that he commenced employment with Urgent Couriers on 13 September 2019 and that his dismissal took effect on 14 December 2019.

[3] Additionally, the application made by Mr Mann was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[4] Section 395 of the FW Act which deals with application fees provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[5] 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.

[6] 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.

[7] On 6 January 2020 the Commission attempted to contact Mr Mann on his nominated mobile telephone number regarding his application being incomplete and the minimum employment period issue. A voicemail message was left advising Mr Mann that the Commission would email correspondence to him.

[8] Later that day correspondence was emailed to Mr Mann advising that:

•  On the basis of the information contained in his Form F2 he had not served the minimum employment period;

•  His application required payment of the filing fee or a completed fee waiver form;

•  Mr Mann was required to file in the Commission any evidence that he had worked the minimum employment period and to pay the required fee or file a completed fee waiver form within 14 days; and

•  If the Commission did not hear back from Mr Mann within 14 days his application may be dismissed without further notice.

[9] On 11 February 2020 the Commission emailed correspondence to Mr Mann again advising that based on the information he had provided in his Form F2 it appeared that the Commission has no jurisdiction to deal with his application as he had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Mr Mann and had not been able to successfully contact him. That correspondence advised that unless Mr Mann contacted the Commission within 7 days and provided an explanation of why he did not respond to the direction in the first correspondence, his application would be determined on the material currently before the Commission without further reference to him.

[10] Later that day the Commission attempted to telephone Mr Mann on his nominated mobile telephone number. A voicemail message was left for Mr Mann. Also on that day the Commission sent an SMS message to Mr Mann’s nominated mobile telephone number advising there was a problem with his unfair dismissal application and requested a return call.

[11] On 24 February 2020 the Commission attempted to contact Mr Mann by telephone in relation to the correspondence. A voicemail message was left advising that the matter would be referred to a Member of the Commission to issue a decision.

[12] To date, no response has been received from Mr Mann, payment of the required fee has not been made and no fee waiver form has been received.

[13] 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.

[14] Having regard to the circumstances of this matter, I am satisfied that Mr Mann has not completed the required minimum employment period. As a result, I am satisfied that his application has no reasonable prospects of success.

[15] Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act.

[16] As such, the application is dismissed under ss.587(1)(a) and 587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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