James Farrell v Thomas Baltzer Jensen

[2023] FWC 2735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Farrell
v

Thomas Baltzer Jensen

(U2023/8366)

COMMISSIONER BISSETT

MELBOURNE, 19 OCTOBER 2023

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

On 4 September 2023 James Farrell (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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Thomas Baltzer Jensen on 20 February 2023 and that they were notified of their dismissal on 14 August 2023.

On 6 September 2023 the Commission sent correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.

On 28 September 2023 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting that they call the Commission back as it appeared that they have not served the minimum employment period.

As the required documentation was not received, on 6 October 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, they could not be reached.

To date the Applicant has not replied to the Commission’s correspondence.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.

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.

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.

As the Applicant 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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CaseChat Overview and Summary

James Farrell brought a claim against Thomas Baltzer Jensen for unfair dismissal under section 394 of the Fair Work Act 2009, alleging he was dismissed on 14 August 2023, after commencing employment on 20 February 2023. The Fair Work Commission, under Commissioner Bissett, was tasked with determining whether the dismissal was unfair and if Mr Farrell was eligible for a remedy. The central issue for the Commission was whether Mr Farrell had completed the minimum employment period required to be protected under the Act, a threshold question that directly impacts the eligibility for relief under the legislation.

The Fair Work Commission considered the statutory provisions relevant to the minimum employment period and the grounds upon which an application for unfair dismissal could be dismissed. Section 382 of the Fair Work Act 2009 stipulates that an employee must complete a minimum employment period to be protected from unfair dismissal. Section 383 further defines this period as six months if the employer is not a small business, or one year if the employer is a small business. Given Mr Farrell's employment duration of approximately six months, the Commission needed to verify if he had indeed met the statutory requirement. Additionally, section 587(1)(c) of the Act allows the Commission to dismiss an application if it has no reasonable prospect of success, which the Commission applied in this instance due to the ineligibility stemming from the incomplete minimum employment period.

In dismissing the application, the Commission found that Mr Farrell had not served the requisite minimum employment period as outlined in the Fair Work Act. The Commission reasoned that since Mr Farrell had not provided evidence to substantiate that he had completed the six-month period, the application had no reasonable prospect of success. Consequently, the application was dismissed under section 587(1)(c) of the Fair Work Act. The Commission noted that despite multiple attempts to contact Mr Farrell for further documentation, no response was received, reinforcing the decision to dismiss the application.

The Commission did not make any orders as the dismissal of the application meant no further action was required. The dismissal of Mr Farrell’s application was based strictly on the statutory grounds related to the minimum employment period and the lack of reasonable prospect of success.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established