Denzyl Price v Mount Helena Tavern

[2020] FWC 3671

[2020] FWC 3671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denzyl Price
v
Mount Helena Tavern
(U2020/8617)

COMMISSIONER BISSETT MELBOURNE, 16 JULY 2020

Application for an unfair dismissal remedy.

[1] On 22 June 2020 Mr Denzyl Price 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).

[2] Mr Price advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mount Helena Tavern on 6 January 2020 and that his dismissal took effect on 19 June 2020.

[3] On 23 June 2020 the Commission contacted Mr Price on his nominated telephone number. The Commission advised Mr Price that based on the information in his Form F2 he had not served the minimum employment period and that Mount Helena Tavern may not be a National System Employer. The Commission advised Mr Price that he may want to seek legal advice on these issues.

[4] Later that day, the Commission emailed correspondence to Mr Price’s nominated email address advising Mr Price that on the basis of the information provided in the Form F2, he had not served the minimum employment period and that Mount Helena Tavern may not be a National System Employer. The correspondence directed Mr Price to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Price did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Price’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 6 July 2020 the Commission attempted to contact Mr Price on his nominated telephone number, however, Mr Price could not be reached. A voicemail message was left requesting that he contact the Commission.

[6] To date, Mr Price has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Mr Price has not completed the required minimum employment period.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Price has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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