Gavin John Lahiff v Greyhound Resources

[2021] FWC 6326

[2021] FWC 6326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gavin John Lahiff
v

Greyhound Resources

(U2021/9109)

COMMISSIONER BISSETT MELBOURNE, 12 NOVEMBER 2021

Application for an unfair dismissal remedy – minimum employment period not served – filing fee no paid and no waiver sought – application not made in accordance with the Fair Work Act 2009 and application has no reasonable prospects of success – application dismissed on Commission’s initiative

1. On 11 October 2021, Mr Gavin John Lahiff 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).

1. Mr Lahiff advised in the Form F2 Unfair Dismissal Application that he commenced employment with Greyhound Resources (the Respondent) on 29 March 2021 and that his dismissal took effect on 8 August 2021.

1. On 15 October 2021 the Commission attempted to contact Mr Lahiff on his nominated telephone number to discuss the minimum employment period, confirm the Respondent’s contact information and to process the filing fee. The call was not answered and no voicemail option was available to leave a message.

1. Later that day, the Commission emailed correspondence to Mr Lahiff’s nominated email address advising that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Lahiff 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 Lahiff did not contact the Commission within 14 days, the application may be dismissed without further notice. 

1. On 22 October 2021 Mr Lahiff contacted the Commission to confirm employment period. Mr Lahiff advised he would seek legal advice to ascertain whether a General Protections application may be applicable as an alternative. Mr Lahiff was advised of the 21-day timeframe for lodgement. Mr Lahiff advised he would not pay the filing fee for his unfair dismissal application and would contact the Commission in due course to confirm discontinuance of the unfair dismissal application. 

1. On 25 October 2021 the Commission attempted to contact Mr Lahiff on his nominated telephone number to discuss multiple applications received from him in relation to his dismissal, whether he had completed the minimum employment period, to confirm the Respondent contact information and to process the filing fee. The call was not answered and there was no option to leave a voicemail.

1. As no documentation was received, on 4 November 2021 the Commission again attempted to contact Mr Lahiff on his nominated telephone number to discuss the issues described in Paragraph [6] above. The call was not answered and there was no option to leave a voicemail.

1. An email was sent to Mr Lahiff on 4 November 2021 advising him that, on the basis of the information he had provided the Commission intended to dismiss his unfair dismissal application as it had no reasonable prospects of success and that a formal decision would be issued in the near future. This is that decision.

1. To date, Mr Lahiff has not replied to the Commission’s correspondence in relation to his unfair dismissal application.

1. 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.

1. 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.

1. 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.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Lahiff 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. Additionally, the matter is dismissed under s.587(1)(a) of the FW Act as the filing fee or a fee waiver was not received, meaning it was not made in accordance with the FW Act. An order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR735716.

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