Jesper Loh v John Blair Motor Sales Pty Ltd T/A John Blair Honda

[2020] FWC 2369

[2020] FWC 2369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesper Loh
v
John Blair Motor Sales Pty Ltd T/A John Blair Honda
(U2020/3347)

COMMISSIONER BISSETT MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 20 March 2020, Mr Jesper Loh 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] In his application, Mr Loh advised that he commenced employment with John Blair Motor Sales Pty Ltd T/A John Blair Honda on 2 September 2019 and that his dismissal took effect on 28 February 2020.

[3] On 23 March 2020, the Commission attempted to contact Mr Loh on his nominated telephone number. The telephone number was not connected.

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

[5] As the required documentation was not received, on 23 April 2020 the Commission attempted to contact Mr Loh by telephone and found the telephone number was not connected.

[6] To date, Mr Loh has not replied to the Commission’s correspondence.

[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 Mr Loh 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] In the circumstances of this matter, I am satisfied Mr Loh has not completed the required minimum employment period.

[11] 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

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

[12] Having regard to the circumstances of this matter, I am satisfied that as Mr Loh 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 to this effect will be issued shortly.

COMMISSIONER

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