Jai Donegan v Nepean BoltMaster

[2018] FWC 1839

[2018] FWC 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jai Donegan
v
Nepean BoltMaster
(U2018/636)

DEPUTY PRESIDENT DEAN SYDNEY, 4 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 22 January 2018, Mr Jai Donegan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Donegan’s application states that he commenced employment with Nepean Boltmaster (the respondent) on 8 March 2017 and that his dismissal took effect on 3 January 2018.

[3] On 2 February 2018, the respondent filed a Form F3 – Employers Response, objecting to the application on the grounds that Mr Donegan had not met the minimum employment period. It was the respondent’s submission that Mr Donegan had become a full time employee on 7 September 2018, and that from 8 March 2017 to 6 September 2017 he had been a casual employee with non-regular and non-systematic employment.

[4] On 7 March 2018, correspondence was sent to Mr Donegan outlining the respondent’s objection to his application, and asking Mr Donegan to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 15 March 2018, correspondence was sent to Mr Donegan to follow up on the request that he provide any material evidencing his commencement date (and having met the minimum employment period). Mr Donegan was given a further period of five days to respond. Mr Donegan was advised in the absence of any response being received, his application may be dismissed.

[6] On 22 March 2018, the Commission had a telephone conversation with Mr Donegan who indicated that he would file a statement the following day. No statement was received.

[7] To date, Mr Donegan has not responded to any of the Commission’s correspondence in writing.

[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] 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] In the circumstances of this matter, I am satisfied Mr Donegan has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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