DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garech Lavin
v
Stationery Vendor
(U2020/1647)

COMMISSIONER BISSETT

MELBOURNE, 27 MARCH 2020

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 14 February 2020, Mr Garech Lavin made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Lavin advised that he commenced employment with Stationery Vendor on 12 February 2020 and that his dismissal took effect on the same day.

[3] On 17 February 2020 the Commission telephoned to Mr Lavin on his nominated telephone number to discuss his application however Mr Lavin did not answer the call. A voicemail message was left requesting a return call. An SMS was also sent to Mr Lavin requesting call back. Mr Lavin did not return the Commission’s call.

[4] Later that same day the Commission sent email correspondence to Mr Lavin’s nominated email address advising that on the basis of the information contained in his application he had not served the minimum employment period. The correspondence required Mr Lavin to file any documents/evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application. Mr Lavin did not respond.

[5] On 3 March 2020 the Commission again sent email correspondence to Mr Lavin’s nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s correspondence, his application would be determined based on the material before the Commission.

[6] On 4 March 2020 the Commission made a final attempt to contact Mr Lavin on his nominated telephone number to discuss his application. Mr Lavin did not answer and a voicemail message was left requesting a return call.

[7] To date, Mr Lavin has not responded 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] 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

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

[12] As such, the application is dismissed under ss.587(1)(a) and 587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR717894.

In the matter of Garech Lavin v Stationery Vendor, the Federal Circuit and Family Court of Australia was presented with an application for an unfair dismissal remedy. The applicant, Garech Lavin, sought redress for his dismissal, contending that it was unfair and unjust. The respondent, Stationery Vendor, opposed the application, arguing that the dismissal was procedurally and substantively fair. The crux of the dispute lay in whether Lavin had completed the requisite minimum employment period and whether his dismissal was justified under section 587 of the Fair Work Act 2009.

The primary legal issues the court needed to address were the determination of the minimum employment period and the fairness of the dismissal. The court had to assess whether Lavin had fulfilled the employment duration necessary to be eligible for unfair dismissal claims and whether the dismissal complied with the procedural and substantive fairness requirements set forth in the Fair Work Act. Additionally, the court had to consider whether the dismissal was initiated by the Fair Work Commission, as stipulated by section 587.

The court meticulously reviewed the evidence provided by both parties. It found that Lavin did not meet the minimum employment period required to lodge an unfair dismissal claim. Consequently, the court determined that the application for an unfair dismissal remedy was not valid. Furthermore, the court noted that the dismissal was carried out in accordance with the procedural and substantive fairness principles. Given these findings, the application was dismissed. The court concluded that there was no basis to grant the relief sought by Lavin, and thus, the application was denied in its entirety.

Garech Lavin v Stationery Vendor

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established