Heyward-Chaplin v Sumer Honey Pty Ltd

[2016] FWC 885

[2016] FWC 885

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Gareth Heyward-Chaplin
v
Sumer Honey Pty Ltd T/A Boston Brewery
(U2016/392)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 10 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        On 30 January 2016, Mr Gareth Heyward-Chaplin made an application for a remedy

for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2]        Mr Heyward-Chaplin advised that he commenced employment with Sumer Honey Pty

Ltd on 6 August 2015 and that his dismissal took effect on 6 January 2016.

[3]        On 3 February 2016, correspondence was sent to Mr Heyward-Chaplin indicating that

on the basis of the information contained in the application, he had not served the minimum

employment period. The correspondence required Mr Heyward-Chaplin to advise the Fair

Work Commission within 14 days whether he wished to proceed with his application.

[4]        On 4 February 2016, Mr Heyward-Chaplin wrote to the Commission to say that he

cannot provide evidence of having worked for Sumer Honey for one year or more as he had

not. He went on to say that he did not believe Sumer Honey was a small business.

[5]        On 8 February 2016, correspondence was sent to Mr Heyward-Chaplin to say that as

he advised that he commenced employment on 6 August 2015 and ended employment on 6

January 2016, he had not been employed for six months. Mr Heyward-Chaplin was asked to

provide documentary evidence if the dates in his application form were incorrect. Mr

Heyward-Chaplin replied to the Commission to say that he cannot provide the evidence that is

required.

[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.
[2016] FWC 885

[7]        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.

[8]        In the circumstances of this matter, I am satisfied Mr Heyward-Chaplin has not

completed the required minimum employment period and his application has no reasonable

prospects of success.

[9]        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.

[10]      Consequently, the application is dismissed under section 587(1)(c) of the Act. An

Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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