Ethan Sams v Lenergy

[2021] FWC 397

[2021] FWC 397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ethan Sams
v
Lenergy
(U2020/16535)

COMMISSIONER BISSETT MELBOURNE, 28 JANUARY 2021

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

[1] On 26 December 2020, Mr Ethan Sams 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 Sams advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Lenergy on 28 September 2020 and that his dismissal took effect on 16 December 2020. A blank fee waiver form was also submitted with the application.

[3] On 30 December 2020 the Commission attempted to contact Mr Sams on his nominated telephone number. A voicemail message was left requesting Mr Sams contact the Commission to confirm his employment period and to discuss the incomplete fee waiver.

[4] Later that day the Commission emailed correspondence to Mr Sams’s nominated email address advising him that, on the basis of the information provided in the Form F2, it appeared he had not served the minimum employment period. The correspondence directed Mr Sams to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Sams did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 14 January 2021 the Commission attempted to contact Mr Sams on his nominated telephone number. However, Mr Sams could not be reached. A voicemail message was left advising that the Commission may consider dismissing the application if the required information was not received.

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

[9] 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.

[10] 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 prospect of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Sams 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 with this decision.

COMMISSIONER

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