Gregory Gatenby v Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited

[2018] FWC 7253

[2018] FWC 7253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gregory Gatenby
v
Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited
(U2018/8284)

DEPUTY PRESIDENT DEAN SYDNEY, 27 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 10 August 2018, Mr Gregory Gatenby made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] 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.

[3] Mr Gatenby’s application said that he commenced employment with Hawks Nest Golf Club Limited T/A Hawks Nest Golf Club Limited on 1 February 2018 and that his dismissal took effect on 21 July 2018.

[4] On 14 August 2018, a voicemail message was left for Mr Gatenby advising him that on the basis of the information contained in the application, it appeared he had not served the minimum employment period. Correspondence was also sent to Mr Gatenby confirming that it appeared that he had not met the minimum employment period and requesting that he advise, within 14 days, whether he wished to proceed with his application.

[5] On 5 and 12 November 2018, further attempts were made to contact Mr Gatenby.

[6] On 12 November 2018, further correspondence was sent to Mr Gatenby providing an additional seven days to reply. Mr Gatenby was advised that in the absence of a reply his application may be dismissed.

[7] To date, Mr Gatenby has not responded to the Commission.

[8] 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.

[9] 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.

[10] In the circumstances, I am satisfied Mr Gatenby has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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