Dean Isles v Ambulance Victoria

[2017] FWC 5732

[2017] FWC 5732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Isles
v
Ambulance Victoria
(U2017/10540)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 28 September 2017, Mr Dean Isles made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Isles advised that he commenced employment with Ambulance Victoria on 5 June 2017 and that his dismissal took effect on 7 September 2017.

[3] On 2 October 2017, the Fair Work Commission (the Commission) telephoned Mr Isles to advise him of the minimum employment period requirement under the Act and confirmed correspondence would be sent to him regarding this. Subsequently, a letter was sent to Mr Isles indicating that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence directed Mr Isles to file in the Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Isles was advised that in the absence of any material being received, his application may be dismissed.

[4] On 11 October 2017, an attempt was made to telephone Mr Isles in relation to the correspondence of 2 October 2017 and a “voice to text” message was left, seeking that he return the Commission’s call.

[5] On 17 October 2017, the Commission again attempted to telephone Mr Isles and a further “voice to text” message was left. On the same day, correspondence was sent to Mr Isles noting that he had not filed material in support of his claim he had served the minimum employment period. Mr Isles was given a further seven days to provide an explanation as to why he did not respond to the direction contained in the correspondence of 2 October 2017. Mr Isles was advised that if there was no response to this correspondence, his application would be determined on the material currently before the Commission.

[6] On 31 October 2017, a final attempt made by the Commission to contact Mr Isles via telephone was unsuccessful and another “voice to text” message was left.

[7] To date, Mr Isles has not responded to the Commission’s correspondence.

[8] 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.

[9] 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.

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

[11] 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.

[12] 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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