Gresham Cameron v Poolwerx T/A Poolwerx Robina

[2017] FWC 2282

[2017] FWC 2282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gresham Cameron
v
Poolwerx T/A Poolwerx Robina
(U2017/3252)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 26 March 2017, Mr Gresham Cameron made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Cameron advised that he commenced employment with Poolwerx T/A Poolwerx Robina (Poolwerx) in November 2016 and that he was notified of his dismissal on 17 March 2017 via a letter, which had been sent on 13 March 2017.

[3] On 27 March 2017, a telephone call was made to Mr Cameron, however, there was no answer and a voicemail message was left. On the same day, correspondence was sent to Mr Cameron confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence required Mr Cameron to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Cameron was also advised that the application had been made without payment of the required application fee. An application for fee waiver was supplied. Mr Cameron was advised in the absence of any material being received, his application may be dismissed.

[4] On 7 April 2017, the Commission telephoned Mr Cameron who confirmed he had read the correspondence of 27 March 2017 and that the commencement and termination dates in his application were correct. In response to being asked whether he wished to proceed with the application, Mr Cameron advised he would not withdraw his application and that the Commission would have to do that.

[5] On 11 April 2017, correspondence was sent to Mr Cameron noting he had previously been directed to file material in support of his claim he had served the minimum employment period but had not done so. Mr Cameron was given a further seven days to provide an explanation of why he did not respond to the direction contained in the correspondence of 27 March 2017. Mr Cameron was advised that if there was no response, his application would be determined on the material currently before the Commission.

[6] To date, Mr Cameron has not replied to the Commission’s correspondence.

[7] 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.

[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] In the circumstances of this matter, I am satisfied Mr Cameron has not completed the required minimum employment period.

[10] 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.

[11] Based on the material before me, I am not satisfied Mr Cameron has completed the required minimum employment period and therefore, I consider his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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