Guy Farrington v Jewel Bay Pty Ltd T/A Coco's Restaurant

[2015] FWC 2783

[2015] FWC 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Guy Farrington
v
Jewel Bay Pty Ltd T/A Coco’s Restaurant
(U2015/4649)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 APRIL 2015

Application for relief from unfair dismissal.

[1] On 8 April 2015, Mr Guy Farrington made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Farrington advised that he commenced employment with Jewel Bay Pty Ltd T/A Coco’s Restaurant on 6 October 2014 and that his dismissal took effect on 27 March 2015.

[3] On 14 April 2015, correspondence was sent to Mr Farrington 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 Farrington to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 20 April 2015, Mr Farrington filed with the Commission an Outline of Argument which again advised his employment was for the period 6 October 2014 to 27 March 2015.

[5] Mr Farrington submitted that he worked additional hours above the 38 hours provided for in the national employment standards and was not paid for the additional hours worked. Mr Farrington submitted that in the period he was employed he worked 1177 hours which is the equivalent of 30.97 legal working weeks.

[6] 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.

[7] 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.”

[8] Mr Farrington misunderstands how the 6 months is calculated. The number of hours worked each week is not relevant to the calculation of the minimum employment period. If Mr Farrington has a complaint that he worked additional hours for which he was not paid he should make a complaint to the Fair Work Ombudsman. However it has no impact on the question of whether he was employment for the minimum employment period.

[9] As there is no factual dispute the Commission is not required to conduct a hearing.

[10] In the circumstances of this matter, I am satisfied Mr Farrington 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 section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR563362>