Heyward-Chaplin v Sumer Honey Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for relief from unfair dismissal under section 394 of the Fair Work Act 2009, Gareth Heyward-Chaplin, the applicant, sought to challenge his dismissal by Sumer Honey Pty Ltd (trading as Boston Brewery), the respondent. Mr Heyward-Chaplin claimed to have been unfairly dismissed, but the respondent argued that the dismissal was justified and that the applicant did not meet the minimum employment period required to bring such an application. The matter was heard before Deputy President Gooley in Melbourne.

The central legal issue before the court was whether Mr Heyward-Chaplin had completed the requisite minimum employment period to be protected from unfair dismissal under section 382 of the Fair Work Act 2009. Specifically, the court needed to determine whether Mr Heyward-Chaplin had worked for the respondent for at least six months, as required for non-small business employers, or one year, as required for small business employers. This determination was crucial because the applicant's eligibility to bring an unfair dismissal claim hinged on meeting these employment duration criteria.

Deputy President Gooley found that Mr Heyward-Chaplin had not completed the required minimum employment period. The applicant had stated that he began working for the respondent on 6 August 2015 and that his employment ended on 6 January 2016. This period amounted to less than six months, and the applicant could not provide evidence to the contrary. Furthermore, the applicant did not assert that the respondent was a small business employer. Therefore, the court concluded that Mr Heyward-Chaplin did not meet the employment duration requirement to bring an unfair dismissal claim. Under section 587(1)(c) of the Act, the application was dismissed due to a lack of reasonable prospects of success.

The Deputy President issued an order dismissing the application under section 587(1)(c) of the Fair Work Act 2009. The court determined that Mr Heyward-Chaplin's application had no reasonable prospects of success because he had not fulfilled the minimum employment period required by the Act. Consequently, the application for relief from unfair dismissal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established