James Mattey v 4 Cousins Supermercato T/A 4 Cousins Supermercato

[2015] FWC 3419

[2015] FWC 3419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Mattey
v
4 Cousins Supermercato T/A 4 Cousins Supermercato
(U2015/4927)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MAY 2015

Application for relief from unfair dismissal.

[1] On 16 April 2015, Mr James Mattey made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Mattey advised that he commenced employment with 4 Cousins Supermercato on 1 November 2014 and that his dismissal took effect on 7 April 2015.

[3] On 20 April 2015, correspondence was sent to Mr Mattey 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 Mattey to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 6 May 2015, a staff member of the Fair Work Commission spoke with Mr Mattey and Mr Mattey advised he wished to proceed with his application.

[5] On 12 May 2015, I caused correspondence to be sent to Mr Mattey via post and email asking that he provide documentary evidence that his employment period was not 1 November 2014 to 7 April 2015. Mr Mattey was advised that in the absence of a response from him by noon on 19 May 2015, his application would be dismissed.

[6] Mr Mattey 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 Mattey 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.

DEPUTY PRESIDENT

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