James French v Icatchers Qld Pty Ltd

[2015] FWC 5489

[2015] FWC 5489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James French
v
Icatchers Qld Pty Ltd
(U2015/9150)

COMMISSIONER WILSON MELBOURNE, 13 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 7 July 2015, Mr James French made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr French advised that he commenced employment with Icatchers Qld Pty Ltd on 9 June 2015 and that his dismissal took effect on 24 June 2015.

[3] On 8 July 2015, correspondence was sent to Mr French 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 French to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] Mr French did not reply to that correspondence.

[5] On 22 July 2015, Mr French was sent further correspondence and was advised that unless advice was received from him within 14 days, his application would be dismissed.

[6] Mr French did not reply to that correspondence.

[7] 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.

[8] 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.”

[9] In the circumstances of this matter, I am satisfied Mr French 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.

COMMISSIONER

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