Dylan Chamings v Drakes Supermarkets T/A Brave Logistics

[2020] FWC 2399

[2020] FWC 2399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Chamings
v
Drakes Supermarkets T/A Brave Logistics
(U2020/4780)

COMMISSIONER BISSETT MELBOURNE, 8 MAY 2020

Application for an unfair dismissal remedy.

[1] On 15 April 2020, Mr Dylan Chamings 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 Chamings advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Drakes Supermarkets T/A Brave Logistics on 28 October 2019 and that his dismissal took effect on 8 April 2020.

[3] On 15 April 2020 at 4.30 pm, the Commission telephoned Mr Chamings on his nominated telephone number. A voicemail message was left explaining that the dates provided on his application indicate that he had not served the minimum employment period and requested that Mr Chamings contact the Commission as soon as possible.

[4] On 15 April 2020 at 4.39 pm, Mr Chamings telephoned the Commission and advised that he started working at the business initially through a recruitment company at an earlier date and that that would have met the minimum employment period if it was included in his period of service. Mr Chamings was advised to seek legal advice in relation to this and advised of the implications of proceeding with his claim based on the current information on his application.

[5] Later that day, the Commission emailed correspondence to Mr Chamings advising that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Chamings to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also advised Mr Chamings that if he did not contact the Commission within 14 days, the application may be dismissed without further notice.

[6] As the required documentation was not received, on 27 April 2020 the Commission attempted to contact Mr Chamings via his nominated telephone number. However, Mr Chamings could not be reached. A voicemail message was left advising Mr Chamings that his application was at risk of being dismissed on the basis that he had not met the minimum employment period and that the Commission had not received any documentation from him. The voice message requested Mr Chamings contact the Commission urgently.

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

[8] 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.

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

[10] 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.

[11] 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.

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Chamings 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 to this effect will be issued shortly.

COMMISSIONER

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