Hayden Berwick v Whelan, Darrel Ian T/A Smithfield Sheetmetal

[2013] FWC 6809

[2013] FWC 6809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayden Berwick
v
Whelan, Darrel Ian T/A Smithfield Sheetmetal
(U2013/10585)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 17 June 2013, Mr Hayden Berwick made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Berwick advised that he commenced employment with Whelan, Darrel Ian T/A Smithfield Sheetmetal on 12 February 2013 and that his dismissal took effect on 5 June 2013.

[3] On 19 June 2013, correspondence was sent to Mr Berwick 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 Berwick to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr Berwick did not reply to that correspondence.

[5] 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.

[6] 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.

[7] In the circumstances of this matter, I am satisfied Mr Berwick has not completed the required minimum employment period and his application has no reasonable prospects of success.

[8] 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.

[9] 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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