Jarred Russell v All Seasons Hotel Bendigo T/A All Seasons Quality Resort

[2017] FWC 817

[2017] FWC 817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jarred Russell
v
All Seasons Hotel - Bendigo T/A All Seasons Quality Resort
(U2016/15564)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 29 December 2016, Mr Jarred Russell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Russell advised that he commenced employment with All Seasons Hotel - Bendigo T/A All Seasons Quality Resort on 14 September 2016, or on a day very close to that date, and that his dismissal took effect on 3 December 2016.

[3] On 4 January 2017, following a telephone discussion with Mr Russell, correspondence was sent to him 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 Russell to file in the Fair Work Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.

[4] On 12 January 2017, the Commission telephoned Mr Russell and left a voicemail seeking a return call. Another telephone call was made on 19 January 2017, however there was no answer and no voicemail was able to be left.

[5] On 19 January 2017, further correspondence was sent to Mr Russell allowing a further seven days in which to reply. Mr Russell was advised that if there was no response, his application would be determined on the material currently before the Commission.

[6] On 6 February 2017, a final attempt to telephone Mr Russell was made, however there was no answer and no voicemail was able to be left.

[7] To date, Mr Russell has not replied to the Commission’s correspondence.

[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 Russell has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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