Glen Wielozynski v Thomas Foods International Pty Ltd

[2015] FWC 1051

[2015] FWC 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen Wielozynski
v
Thomas Foods International Pty Ltd
(U2014/15389)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 24 November 2014, Mr Glen Wielozynski made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Wielozynski advised that he commenced employment with Thomas Foods International Pty Ltd on 19 May 2014 and that his dismissal took effect on 4 November 2014 and he was notified of his dismissal on 7 November 2014.

[3] On 25 November 2014, correspondence was sent to Mr Wielozynski pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Wielozynski to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 15 December 2014, an attempt was made to contact Mr Wielozynski regarding the minimum employment period and on the same date, the Commission sent correspondence to Mr Wielozynski.

[5] On 5, 12 and 21 January 2015, Mr Wielozynski was advised by telephone that on the basis of the information contained in the application, he had not served the minimum employment period. During these conversations, Mr Wielozynski advised that he would seek legal advice and was considering whether to proceed with his application.

[6] On 21 January 2015, the Commission sent correspondence to Mr Wielozynski’s new service address.

[7] To date, Mr Wielozynski has not replied to that correspondence.

[8] 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.

[9] Section 383 of the Act sets out the 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] In the circumstances of this matter, I am satisfied Mr Wielozynski has not completed the required minimum employment period and his application has no reasonable prospects of success.

[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] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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