Dean Cooper v Pepes Ducks Ltd Summary

[2023] FWC 2738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dean Cooper
v

Pepes Ducks Ltd

(U2023/8838)

COMMISSIONER BISSETT

MELBOURNE, 19 OCTOBER 2023

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

On 14 September 2023 Dean Cooper (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Pepes Ducks Ltd on 24 April 2023 and that they were notified of their dismissal on 14 September 2023.

On 20 September 2023, the Commission made two attempts to contact the Applicant on their nominated telephone number. On both occasions a recorded voice advised that the call could not be completed and there was no option to leave a voicemail message.

Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that they contact the Commission.

On 21 September 2023 the Commission attempted to contact the Applicant on their nominated telephone number. A recorded voice again advised that the call could not be completed and there was no option to leave a voicemail message.

As the required documentation was not received, on 4 October 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, they could not be reached.

To date the Applicant has not replied to the Commission’s correspondence.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.

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.

Section 587(1) of the FW Act provides as follows:

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 prospect of success.

As the Applicant has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Dean Cooper applied to the Fair Work Commission (FWC) for a remedy for unfair dismissal against Pepes Ducks Ltd. The Applicant alleged they had been dismissed on 14 September 2023, after having commenced employment with the Respondent on 24 April 2023. The Commission was required to determine whether the Applicant had satisfied the minimum employment period, and whether the application had a reasonable prospect of success. The Commission found that the Applicant had not completed the required six-month employment period under the Fair Work Act 2009 (FW Act), as they were dismissed less than six months after commencing employment. The Commission also found that the application had no reasonable prospect of success as it was unlikely that the Applicant had completed the required employment period. Accordingly, the application was dismissed under section 587 of the FW Act.

The key legal issue in this case was whether the Applicant had completed the minimum employment period as required by section 383 of the FW Act. If the Applicant had not completed the required employment period, the application would have no reasonable prospect of success and could be dismissed under section 587(1)(c) of the FW Act. The Commission noted that the Applicant had not provided any evidence to support their claim that they had completed the required employment period. The Commission also noted that the Applicant had failed to respond to the Commission's attempts to contact them. The Commission was satisfied that the Applicant had not completed the required minimum employment period and dismissed the application as having no reasonable prospect of success.

The Commission dismissed the application for unfair dismissal as the Applicant had not completed the required minimum employment period under the FW Act. The Commission found that the Applicant had not provided any evidence to support their claim that they had completed the required employment period. The Commission also noted that the Applicant had failed to respond to the Commission's attempts to contact them. The Commission was satisfied that the application had no reasonable prospect of success and dismissed it under section 587(1)(c) of the FW Act.

No orders were made.

Dean Cooper v Pepes Ducks Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established