Jesse Robartson v Reefshore Pty Ltd T/A Wave Surfaces

[2016] FWC 2558

[2016] FWC 2558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesse Robartson
v
Reefshore Pty Ltd T/A Wave Surfaces
(U2016/819)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 APRIL 2016

Application for relief from unfair dismissal.

[1] On 25 February 2016, Mr Jesse Robartson made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Robartson advised that he commenced employment with Reefshore Pty Ltd t/a Wave Surfaces on 1 December 2015 and that his dismissal took effect on 22 February 2016.

[3] On 3 March 2016, correspondence was sent to Mr Robartson pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Robartson to complete an outline of argument and statement of evidence to assist me in making a determination in this matter.

[4] On 11 March 2016, Mr Robartson emailed my chambers to advise that he believed he may have lodged the wrong application in the Commission.

[5] On 11 March 2016, my chambers called Mr Robartson who advised he should have lodged a bullying application instead of a Form F2 unfair dismissal application.

[6] On 16 March 2016, my chambers called Mr Robartson who advised he wished to pursue the application and would be providing documents to chambers the next day.

[7] On 21 March 2016, my chambers called Mr Robartson who advised his computer had broken and he would be able to provide the documents to chambers the following week.

[8] On 21 March 2016, my chambers sent Mr Robartson an email as follows:

“Dear Mr Robartson,

I refer to our telephone conversation today where you advised your computer was broken and was in the process of being fixed.

Please see our letter dated 3 March 2016 for your attention.

In accordance with that correspondence you were required to provide a response by close of business on 10 March 2016.

You are therefore requested to complete and return the attached Outline of Argument and Statement of Evidence by close of business on 31 March 2016.

If no response is received by this date, Deputy President Gooley will determine the matter on the papers.”

[9] Mr Robartson did not reply to that correspondence.

[10] On 18 April 2016, my chambers telephoned Mr Robartson advising that as we had not heard from him, I would now be making a determination on the papers. He advised “that was fine”.

[11] 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.

[12] 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.”

[13] In the circumstances of this matter, I am satisfied Mr Robartson has not completed the required minimum employment period and his application has no reasonable prospects of success.

[14] 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.”

[15] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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