Ian Lockyear v Manpower Australia

[2015] FWC 6550

[2015] FWC 6550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Lockyear
v
Manpower Australia
(U2015/9936)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 6 August 2015, Mr Ian Lockyear made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Lockyear advised that he commenced employment with Manpower Australia in April 2015 and that his dismissal took effect on 31 July 2015.

[3] On 12 August 2015, correspondence was sent to Mr Lockyear 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 Lockyear to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 12 August 2015, 7 September 2015 and 10 September 2015, the Commission attempted to contact Mr Lockyear in relation to the correspondence dated on 12 August 2015. These attempts were unsuccessful.

[5] On 10 September 2015, further correspondence was sent to Mr Lockyear allowing a further 7 days in which to reply, after which time the application would be dismissed.

[6] On 21 September 2015, the Commission attempted to contact Mr Lockyear but a message could not be left on the answering machine.

[7] To date, Mr Lockyear did not reply to that correspondence.

[8] 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.

[9] 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.

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

[11] 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.

[12] Consequently, the application is dismissed under s.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

<Price code A, PR572177>