Dylan Brown v Australian Waste Management

[2017] FWC 3618

[2017] FWC 3618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Brown
v
Australian Waste Management
(U2017/5948)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 JULY 2017

Application for an unfair dismissal remedy.

[1] On 5 June 2017, Mr Dylan Brown made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brown advised that he commenced employment with Australian Waste Management on 21 March 2017 and that his dismissal took effect on 31 May 2017.

[3] On 6 June 2017, a telephone call was made to Mr Brown, however there was no answer and a voicemail was left. On the same day, correspondence was sent to Mr Brown confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence required Mr Brown to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Brown was advised in the absence of any material being received, his application may be dismissed.

[4] On 13 June and 22 June 2017, further attempts to contact Mr Brown via telephone were made and on each occasion a voicemail was left seeking a return call.

[5] On 26 June 2017, correspondence was sent to Mr Brown noting that he had previously been directed to file material in support of his claim he had served the minimum employment period but had not done so. Mr Brown was given a further seven days to provide an explanation of why he did not respond to the direction contained in the correspondence of 6 June 2017. Mr Brown was advised that if there was no response, his application would be determined on the material currently before the Commission.

[6] On 5 July 2017, a final attempt to contact Mr Brown via telephone was made and a voicemail was left seeking an urgent return call.

[7] To date, Mr Brown 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] 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.

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