Hamish Holley v The University of New England

[2024] FWC 43

[2024] FWC 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hamish Holley
v

The University of New England

(U2023/10564)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 25 October 2023, Mr Hamish Holley (the Applicant) 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 Holley advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with The University of New England (the Respondent) on 24 July 2023 and that his dismissal took effect on 13 October 2023.

1. On 31 October 2023, the Commission contacted Mr Holley on his nominated telephone number. Mr Holley confirmed his employment dates and was advised by the Commission that he had not served the minimum employment period. Mr Holey was asked whether he wished to close his application. Mr Holley stated that he wished to keep his application open until he received an email about the minimum employment period requirement. Later that day the Commission emailed correspondence to Mr Holley’s nominated email advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Holley to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

1. On 14 November 2023 the Commission attempted to contact Mr Holley on his nominated telephone number. A voicemail message was left requesting a call back to the Commission regarding his application not meeting the minimum employment period requirement. Mr Holley was advised that if no response was received his matter may be referred to a Member of the Commission who may decide to dismiss his application. To date Mr Holley has not further contacted the Commission.

2. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 as follows:

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. 
   As the material before the Commission indicates Mr Holley has not completed the required minimum employment period under the FW Act, I am satisfied the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR770023

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