Garech Lavin v Stationery Vendor

[2020] FWC 1655

[2020] FWC 1655

FAIR WORK COMMISSION

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

(c) the application has no reasonable prospects of success.

[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

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