David Conroy v Programmed Integrated Workforce

[2014] FWC 4139

[2014] FWC 4139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Conroy
v
Programmed Integrated Workforce
(U2014/4956)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JUNE 2014

Application for relief from unfair dismissal.

[1] On 24 February 2014, Mr David Conroy made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 24 March 2014, Programmed Integrated Workforce (PIW) lodged their response to Mr Conroy’s application and objected to the application on the basis that Mr Conroy had not served the minimum employment period. PIW advised that they wished to have their objection dealt with prior to any conciliation of the matter.

[3] On 27 March 2014, directions were issued to both parties for the filing of material and the matter was allocated to Vice President Lawler for hearing.

[4] On 2 April 2014 and 8 April 2014, the Associate of Vice President Lawler wrote to Mr Conroy and advised him that based on the dates provided in his application, he had not served the minimum employment period as stated in s.383 of the Act. Mr Conroy was asked to provide a response as to why his application should not be heard on the papers.

[5] Mr Conroy did not respond to this correspondence.

[6] The matter was listed for telephone hearing on 15 April 2014 and 24 April 2014. The matter was adjourned to allow parties to provide further information.

[7] During the second hearing the question of whether Mr Conroy would wish to amend his application to a general protections application was discussed and the matter was adjourned to enable Mr Conroy to decide if he wished to make such an application and to enable PIW to decide if it would oppose such an application.

[8] A mention of this matter was held by me on 3 June 2014.

[9] At the mention PIW advised that they opposed any amendment and Mr Conroy was advised that if he wished to amend his application he would need to make a formal application. Mr Conroy was then disconnected from the telephone conference.

[10] Consequently I issued a Statement to ensure that Mr Conroy understood what he needed to do to progress the matter. In that Statement I advised that if Mr Conroy wished to make an application to amend he should do so by close of business, 17 June 2014. The Statement also put Mr Conroy on notice that if he failed to file an application to amend, his unfair dismissal application would be dismissed.

[11] Mr Conroy did not respond to this correspondence and did not file any application to amend.

[12] On 23 June 2014, under s.582(4)(d) of the Act Mr Conroy’s application was allocated to me for reallocation and I determined to allocate the matter to myself.

[13] In making my decision I have had regard to the evidence and material that was before the Vice President.

[14] 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.

[15] Section 383 of the Act sets out the 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.”

[16] In the circumstances of this matter, I am satisfied Mr Conroy has not completed the required minimum employment period and his application has no reasonable prospects of success.

[17] Section 587(1)(c) of the Act provides:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

...

(c) the application has no reasonable prospects of success.”

[18] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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