Jeffrey Miller v Carnegie Clean Energy T/A Energy Made Clean

[2017] FWC 6117

[2017] FWC 6117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Miller
v
Carnegie Clean Energy T/A Energy Made Clean
(U2017/9669)

DEPUTY PRESIDENT BULL PERTH, 22 NOVEMBER 2017

Application for an unfair dismissal remedy, minimum employment period not met, application dismissed.

[1] On 6 September 2017, Mr Jeffrey Miller made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Miller advised that he commenced employment with Carnegie Clean Energy T/A Energy Made Clean on 16 March 2017 and that he was notified of his dismissal and his dismissal took effect on 6 September 2017. On the basis of this information, Mr Miller was employed for a period of approximately five months and three weeks.

[3] On 7 September 2017, the Fair Work Commission (the Commission) sent correspondence to Mr Miller advising that on the basis of the information contained in the application, it appeared that he had not served the minimum employment period of six months, as per s.383 of the FW Act. The correspondence directed Mr Miller to advise the Commission within 14 days whether or not he wished to proceed with his application.

[4] The Commission sent further correspondence to Mr Miller on 21 September 2017 advising that if no response was received from him, the matter may be dismissed. The Commission provided Mr Miller with a further 7 days in which to reply.

[5] On 3 October 2017 the Commission contacted Mr Miller by telephone regarding his application. Mr Miller advised that he wanted to pursue his application. The Commission referred Mr Miller to the letters sent to him from the Commission on 7 and 21 September 2017, confirming that he was directed to file evidence in support of his claim that he has satisfied the minimum employment period. Mr Miller advised he would do so that day.

[6] The Commission attempted to contact Mr Miller via telephone on two further occasions, being 24 October 2017 and 3 November 2017, however both attempts were unsuccessful. Voice-messages were left on both occasions advising Mr Miller that the Commission had not received any further material from him. To date, Mr Miller has not provided any further material to the Commission.

[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 Miller 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.

DEPUTY PRESIDENT

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