Jeremy Tattersall v Steve's Liquor
[2023] FWC 887
•14 APRIL 2023
| [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
<PR761106>
0
0
0