Gaurav Handa v Ventura Bus Lines T/A Bus Company

[2019] FWC 5727

[2019] FWC 5727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaurav Handa
v
Ventura Bus Lines T/A Bus Company
(U2019/8307)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 27 July 2019, Mr Gaurav Handa made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Handa advised that he commenced employment with Ventura Bus Lines T/A Bus Company (Ventura) on 29 April 2019 and that he was notified of his dismissal on 16 July 2019, with the dismissal taking effect on the same day.

[3] On 30 July 2019, the Commission telephoned Mr Handa to advise him that it did not appear he had completed the minimum employment period. Mr Handa advised the Commission that he was aware of this but wished to proceed with his application anyway.

[4] Subsequently, correspondence was emailed to Mr Handa confirming that his application appeared to indicate he had not completed the minimum employment period required by the Act. The correspondence directed Mr Handa to file in the Commission within 14 days any documents or evidence to support his claim that he had served the minimum employment period.

[5] Later the same day, Mr Handa emailed the Commission the following:

“I have mentioned over on the phone, that I have not served the minimum employment period in Venture that is 6 Months but as this matter is directly related to public safety and may be miss use [sic] of government funding that is $8000 for traning [sic] of new employees, where I request the commission to go out of your boundaries to give a fair judgement on this case.

If there is no fair outcome on this application then it will be an encouragement to the operator[s] to keep terminating employees before 6 months in order to gain government funding for new employees. Ventura employes [sic] 4 staff members to give driving training to new drivers and i am wondering that from where their wages are coming from?

Please note i am not talking about Route training. i am talking about bus driving traning [sic].

I leave it up to you to take this matter further so that tax payers money can be saved.

Government spent $8000 on me on Route training and this operator has unfairly terminated me in order to gain further 8000 dollars,,,, if this not be questioned now then it will never be.”

[6] On 14 August 2019, a Commission staff member contacted Mr Handa and advised that the likely outcome, given that he had not served the minimum employment period, was that the application would be dismissed.

[7] A further discussion with the Commission staff member was had on 15 August 2019, during which Mr Handa reinforced his wish to pursue his unfair dismissal matter and to have his case heard.

[8] Mr Handa’s matter was then allocated to me for determination.

[9] Section 382 of the 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.

[10] Section 383 of the Act sets out 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.”

[11] Section 587(1) of the Act provides:

“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] I have had regard to the material filed by Mr Handa and the circumstances of this matter, and am satisfied that as Mr Handa has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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