David Werner v BHPM Enterprises Pty Ltd T/A Big Lobster Cafe

[2014] FWC 3013

[2014] FWC 3013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Werner
v
BHPM Enterprises Pty Ltd T/A Big Lobster Cafe
(U2014/4188)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MAY 2014

Application for relief from unfair dismissal.

[1] On 31 January 2014, Mr David Werner made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Werner advised that he commenced employment with BHPM Enterprises Pty Ltd T/A Big Lobster Cafe on 9 January 2014 and that his dismissal took effect on 11 January 2014.

[3] On 28 February 2014 and 1 April 2104, correspondence was sent to Mr Werner pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Werner did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

[9] 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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