Huw-Morgan Evans v Vic Park Holdings Pty Ltd T/A High Wycombe Tavern

[2016] FWC 4186

[2016] FWC 4186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Huw-Morgan Evans
v
Vic Park Holdings Pty Ltd T/A High Wycombe Tavern
(U2016/2598)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JUNE 2016

Application for relief from unfair dismissal.

[1] On 1 June 2016, Mr Huw-Morgan Evans made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Evans advised that he commenced employment with Vic Park Holdings Pty Ltd T/A High Wycombe Tavern on 9 May 2016 and that his dismissal took effect on 23 May 2016.

[3] On 7 June 2016, correspondence was sent to Mr Evans pointing out that on the basis of the information contained in the application, it appeared that he had not served the minimum employment period. The correspondence required Mr Evans to complete an outline of argument and witness statement in support of his application.

[4] Mr Evans responded to that correspondence on 24 June 2016.

[5] Mr Evans does not dispute that he has not met the minimum employment period. In his outline of argument Mr Evans said that “[w]hilst this may be under the regular six months, I’d like to believe there is some protection available for someone like myself.”

[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.

[7] Section 383 of the Act sets out the 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] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[9] In the circumstances of this matter I am satisfied, based on Mr Evans’ material alone, that Mr Evans has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.”

[11] 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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