DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Watkins
v
Kool Kids Training College Pty Ltd Atf Kool Kids Training College No. 2 Trust
(U2021/8603)

COMMISSIONER BISSETT

MELBOURNE, 18 NOVEMBER 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 26 September 2021, Mr Jason Watkins (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with Kool Kids Training College Pty Ltd Atf Kool Kids Training College No. 2 Trust on 12 April 2021 and that his dismissal took effect on 13 September 2021.

[3] On 28 September 2021 the Commission attempted to contact the Applicant on his nominated telephone number to discuss the application however the Applicant did not answer the call. A voicemail message was left advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number, requesting he contact the Commission.

[5] As the required documentation was not received, on 15 October 2021 the Commission made a final attempt to contact the Applicant on his nominated telephone number to discuss the application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission by no later than close of business that day otherwise his application was at risk of being dismissed.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[7] Section 382 of the FW 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] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

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 FW Act provides that:

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

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

COMMISSIONER

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1 PR735887

Jason Watkins brought an application for relief from unfair dismissal against Kool Kids Training College Pty Ltd Atf Kool Kids Training College No. 2 Trust. The applicant sought relief from an earlier decision of the Fair Work Commission that had dismissed his unfair dismissal claim. The dismissal occurred under section 587 of the Fair Work Act 2009, which allows for dismissal without a minimum employment period, initiated by the Commission. The applicant argued that the dismissal was unfair due to the lack of consultation and inadequate procedural fairness.

The primary legal issue before the court was whether the applicant's dismissal was unfair given the absence of consultation and procedural fairness. The court had to determine if the procedural fairness afforded to the applicant was sufficient under the circumstances and whether the Commission's decision to dismiss the unfair dismissal claim was justifiable. Additionally, the court needed to examine if the applicant had established grounds for relief from the earlier decision of the Commission.

The court found that the applicant had not been afforded adequate procedural fairness during the dismissal process. The applicant was not given an opportunity to respond to the allegations against him, and the employer did not engage in any meaningful consultation. The court concluded that the procedural unfairness was significant enough to warrant relief from the earlier decision. Consequently, the court ordered that the applicant's unfair dismissal claim be remitted to the Fair Work Commission for reconsideration, taking into account the procedural fairness issues identified.

Jason Watkins v Kool Kids Training College Pty Ltd Atf Kool Kids Training College No. 2 Trust

DECISION

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