Jacob Mckay v Mark Barwick

[2023] FWC 1445

[2023] FWC 1445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacob Mckay
v

Mark Barwick

(U2023/3703)

COMMISSIONER BISSETT MELBOURNE, 20 JUNE 2023

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

1. On 30 April 2023 Mr Jacob McKay (the Applicant) 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 McKay advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mark Barwick on 3 February 2023 and that their dismissal took effect on 10 April 2023.

1. On 3 May 2023 the Commission contacted Mr McKay on his nominated telephone number. The Commission advised Mr McKay that he had not served the minimum employment period. Mr McKay advised the Commission that he will seek some legal advice and that he would let the Commission know what he wanted to do.

1. On 4 May 2023, the Commission emailed correspondence to the Mr McKay’s nominated email address advising Mr McKay that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr McKay to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice. Later that day, an SMS notification was also sent to the Applicant’s nominated telephone number requesting that he contact the Commission.

1. As the required documentation was not received, on 7 June 2023 the Commission attempted to contact the Applicant on their nominated telephone number. Mr McKay was asked what he wanted to do about the minimum employment period issue. In this phone call Mr McKay was advised of the implications of him not having met the minimum employment period, that he could discontinue his application or that he could proceed. Mr McKay advised that he wished to proceed with his application.

1. The file was then allocated to me to deal with the issue of the minimum employment period. My chambers wrote to Mr McKay on 14 June 2023 and informed him that:

·  The Fair Work Act 2009 (FW Act) makes clear that, to be eligible for unfair dismissal a person must have completed at least 6 months service with the employer (or 12 months for a small business). The Commission has no discretion in relation to this time period. If you are not eligible to make an application the Commission cannot hear your application.

·  On the information he had provided he was not employed for at least 6 months (he commenced employment on 3 February 2023 and his employment was terminated with effect on 10 April 2023).

·  It was the Commissioner’s preliminary view that his application should be dismissed as it had no reasonable prospect of success pursuant to s.587 of the FW Act).

1. Mr McKay was asked to provide advice as to whether he wished to proceed with his application. It was requested that:

If you do intend to proceed the Commissioner directs you to file submissions as to why she should not dismiss your application pursuant to s.587 of the FW Act on the grounds that it has no reasonable prospect of success as you have not, on the information provided by you and available to the Commission, been employed for the minimum period necessary to be eligible to make a claim.

1. Mr McKay failed to respond to this email. To date the Mr McKay 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 he has completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.

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 as follows:

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. As the Mr McKay has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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