Jason Bingold v Sturt Mall Wagga Wagga

[2019] FWC 6223

[2019] FWC 6223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Bingold
v
Sturt Mall Wagga Wagga
(U2019/8940)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 13 August 2019, Mr Jason Bingold made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Bingold advised that he commenced employment with Sturt Mall Wagga Wagga in February 2019 and that he was notified of his dismissal on 29 July 2019, with the dismissal taking effect on the same day.

[3] On 13 August 2019, the Commission sent email correspondence to Mr Bingold via his nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Bingold to file in the Commission, within 14 days, any documents or evidence to support his claim of having served the minimum employment period. A telephone message was also left on his voicemail requesting a call back.

[4] On 13 August 2019, Mr Bingold was advised by telephone that he did not meet the minimum employment period requirements and insisted that the file be kept open.

[5] On 16 August 2019, Mr Bingold was advised again that he did not meet the minimum employment period requirements, but he was adamant that his application continue.

[6] On 5 September 2019, Mr Bingold was advised the matter was with a member for consideration.

[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] 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 the Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[10] Having regard to the circumstances of the matter, I am satisfied that as Mr Bingold has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to that effect will be issued shortly.

COMMISSIONER

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