Garry Wood v Banks Benchtops

[2024] FWC 1661

[2024] FWC 1661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Garry Wood
v

Banks Benchtops

(U2024/2862)

DEPUTY PRESIDENT EASTON SYDNEY, 25 JUNE 2024

Application for an unfair dismissal remedy

1. On 12 March 2024 Mr Garry Wood made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Wood indicated in his Form F2 Unfair Dismissal Application that he commenced employment with Banks Benchtops in November 2023 and that his dismissal took effect on 4 March 2024.

1. On the information provided by Mr Wood he worked for Banks Benchtops for approximately 4 months.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines 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.

1. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Mr Wood’s case it does not matter whether Banks Benchtops is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff sought further information from Mr Wood about whether he had served the minimum employment period:

(a)on 28 March 2024 Commission staff attempted to contact Mr Wood on his nominated telephone number. A message was sent to Mr Wood asking him to call the Commission.

(b)later that day Commission staff sent an email to Mr Wood advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. Mr Wood was advised that he must file any documents/evidence to support his claim that he had served the required minimum employment period and that if he did not contact the Commission within 14 days then his application could be dismissed without further notice.

(c)on 8 April 2024 Mr Wood sent an email with questions about his termination. Mr Wood’s email did not refer to the date his employment commenced, or the date he was dismissed, and did not contain any information that indicated that the minimum employment period had been served.

(d)on 19 April 2024 Commission staff attempted to contact Mr Wood by telephone. Mr Wood could not be reached and another message was left asking him to make contact with the Commission.

(e)on 22 May 2024 Commission staff made a final attempt to contact Mr Wood by telephone, without success. A final automated message was sent to Mr Wood again asking him to contact the Commission.

1. To date Mr Wood has not provided any information that supports his eligibility to make the application.

Section 587

1. The relevant provisions in s.587 of the Act are as follows:

“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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

Does Wood’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mr Wood’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr Wood on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Wood was employed for approximately 4 months.

1. Mr Wood was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Wood did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about the facts that could change the outcome of her application.

1. On 14 June 2024 Mr Wood was also specifically invited to provide submissions by 21 June 2024 on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Mr Wood telling his that an important email had been sent. Mr Wood did not respond to this correspondence.

1. I am satisfied that Mr Wood has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr Wood’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR776388).

DEPUTY PRESIDENT

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<PR776387>