James Walters v Tradetools Pty Ltd T/A Tradetools

[2015] FWC 4384

[2015] FWC 4384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Walters
v
Tradetools Pty Ltd T/A Tradetools
(U2015/7678)

COMMISSIONER WILSON MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 19 May 2015, Mr James Walters made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Walters advised he commenced employment withTradetools Pty Ltd T/A Tradetools on 8 December 2014 and that his dismissal took effect on 11 May 2015.

[3] On 20 May 2015, correspondence was sent to Mr Walters pointing out on the basis of the information contained in his application, he had not served the minimum employment period. The correspondence required Mr Walters to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 June 2015, further correspondence was sent to Mr Walters allowing a further 14 days in which to reply, after which time the application may be dismissed.

[5] On 11 June 2015, a phone call was made to Mr Walters who requested a further extension to seek legal advice. Further attempts were made to telephone Mr Walters on 17 June and 19 June 2015.

[6] To date, Mr Walters has not replied 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:

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.

[9] In the circumstances of this matter, I am satisfied Mr Walters 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 s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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