Joel Spring v RACQ Summary

[2022] FWC 2265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Joel Spring

RACQ

(U2022/7849)

cOMMISSIONER bISSETT

MELBOURNE, 26 AUGUST 2022

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

On 27 July 2022, Mr Joel Spring (the Applicant) 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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with RACQ on 21 March 2022 and that his dismissal took effect on 22 July 2022.

On 29 July 2022, the Commission contacted the Applicant on his nominated telephone number. The Commission advised the Applicant that on the basis of the information provided it appeared he had not served the minimum employment period. The Applicant confirmed he commenced employment with RACQ on 21 March 2022 and that his dismissal took effect on 22 July 2022.

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

As the required documentation was not received, on 10 August 2022 the Commission attempted to contact the Applicant via his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting the Applicant to contact the Commission.

To date, the Applicant has not responded 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 of at least the minimum employment period.

In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospect of success.

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 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.

Having regard to the circumstances of this matter I am satisfied that as the Applicant 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[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR745181

Printed by authority of the Commonwealth Government Printer

Joel Spring applied to the Fair Work Commission (FWC) for relief from unfair dismissal against his employer, RACQ. The application was made pursuant to section 394 of the Fair Work Act 2009 (FW Act) and related to his dismissal on 22 July 2022, less than four months after he commenced employment with RACQ on 21 March 2022. The FWC considered the application on 27 July 2022 and contacted Mr Spring by telephone and email to advise that he did not appear to have served the minimum employment period, as required by section 382 of the FW Act. The FWC directed Mr Spring to file any documentation to support his claim that he had completed the required minimum employment period and warned that if he did not respond within 14 days, the application may be dismissed without further notice. Mr Spring did not respond to the FWC and the FWC could not contact him further.

The central legal issue before the FWC was whether Mr Spring had served the minimum employment period, as required by section 382 of the FW Act. The FWC noted that the minimum employment period is six months if the employer is not a small business employer, such as RACQ. The FWC considered that Mr Spring had not completed the required minimum employment period and concluded that his application had no reasonable prospect of success. The FWC considered the application under section 587 of the FW Act, which sets out circumstances in which an application may be dismissed, including where the application has no reasonable prospect of success.

The FWC dismissed Mr Spring's application for relief from unfair dismissal under section 587(1)(c) of the FW Act. The FWC considered that Mr Spring had not completed the required minimum employment period and his application had no reasonable prospect of success. The FWC noted that it had attempted to contact Mr Spring on his nominated telephone number and email address but had not received any response. The FWC considered that Mr Spring had not provided any documentation to support his claim that he had completed the required minimum employment period and that his failure to respond to the FWC's correspondence indicated that his application was unlikely to succeed. The FWC concluded that the application should be dismissed and an order to this effect would be issued shortly.

Joel Spring v RACQ

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established