Hayden Buckley v James Andrews

[2022] FWC 1256

[2022] FWC 1256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hayden Buckley
v

James Andrews

(U2022/5024)

COMMISSIONER O’NEILL MELBOURNE, 23 MAY 2022

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

1. On 3 May 2022, Mr Hayden Buckley 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 Buckley advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with James Andrews in February 2022 and that his dismissal took effect on 28 April 2022.

1. On 5 May 2022, the Commission attempted to contact Mr Buckley on his nominated telephone number. A voicemail message was left requesting him to contact the Commission.

1. Later that day, the Commission emailed correspondence to the nominated email address of Mr Buckley and his representative Ms Hayley Boettcher advising Mr Buckley that on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Buckley to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Buckley did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As the required documentation was not received, on 17 May 2022 the Commission attempted to contact Mr Buckley via his nominated telephone number. Mr Buckley answered the call but then disconnected. The Commission again attempted to contact him via his nominated telephone number. However, he could not be reached. A voicemail message was left requesting that he contact the Commission.

1. On 19 May 2022, the Commission contacted Ms Boettcher via her nominated telephone number. The Commission advised Ms Boettcher that on the basis of the information provided in the Form F2, Mr Buckley had not served the minimum employment period and Mr Buckley should contact the Commission as soon as possible. The Commission further advised Ms Boettcher that if Mr Buckley did not contact the Commission, the application may be dismissed without further notice. Ms Boettcher advised the Commission she will request Mr Buckley to contact the Commission and withdraw his application.

1. To date, Mr Buckley has not replied to the Commission’s correspondence.

1. Section 382 of the FW 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.

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

1. 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 that:

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. Having regard to the circumstances of this matter I am satisfied that as Mr Buckley has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR741867>