Jeremy Tattersall v Steve's Liquor

[2023] FWC 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeremy Tattersall
v

Steve’s Liquor

(U2023/2185)

COMMISSIONER BISSETT

MELBOURNE, 14 APRIL 2023

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

On 16 March 2023 Mr Jeremy Tattersall 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).

Mr Tattersall advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Steve’s Liquor in ‘late October’ and he was notified of his dismissal on 23 February 2023.

Later that day the Commission emailed correspondence to Mr Tattersall’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 Mr Tattersall to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

On 21 March 2023 an SMS notification was sent to Mr Tattersall’s nominated telephone number requesting that he contact the Commission.

On 3 April 2023 Mr Tattersall emailed the Commission and confirmed that he commenced his employment with the Respondent on 21 November 2022.

On 4 April 2023 the Commission attempted to contact Mr Tattersall on his nominated telephone number to discuss the minimum employment period. However, Mr Tattersall could not be reached. A voicemail message was left requesting that he call the Commission to discuss.

To date Mr Tattersall has not replied to the Commission’s correspondence.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Tattersall has not completed the required minimum employment period.

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.

Section 587(1) of the FW Act provides as follows:

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 prospect of success.

As Mr Tattersall has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Jeremy Tattersall filed an application with the Fair Work Commission for relief from an unfair dismissal claim against Steve’s Liquor. The claim was made under section 394 of the Fair Work Act 2009, asserting that his dismissal was unfair. The Commission examined whether Mr Tattersall had completed the requisite minimum employment period, which is a prerequisite for such a claim. Mr Tattersall claimed to have started his employment in late October, but subsequent submissions indicated that he actually began on 21 November 2022.

The central legal issue in this case was whether Mr Tattersall had fulfilled the minimum employment period stipulated under the Fair Work Act. Specifically, the Commission needed to determine if Mr Tattersall had been employed for at least six months, as required by section 383 of the Act, given that Steve’s Liquor is not classified as a small business employer. The Commission noted that Mr Tattersall was notified of his dismissal on 23 February 2023, which was less than six months from his actual commencement date of 21 November 2022. Consequently, the Commission assessed whether the application could proceed under section 382 of the Act.

The Commission concluded that Mr Tattersall had not completed the necessary minimum employment period. Therefore, the application lacked a reasonable prospect of success. Under section 587(1)(c) of the Fair Work Act, the Commission has the authority to dismiss an application if it has no reasonable prospect of success. Given that Mr Tattersall did not meet the employment period requirement, the Commission dismissed the application.

As a result of the dismissal, Mr Tattersall's claim for unfair dismissal was not proceeded with. The Fair Work Commission's decision was based on the failure to meet the statutory requirement of the minimum employment period, rendering the application futile under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established