John McMahon v Pembroke Constructions

[2020] FWC 6240

[2020] FWC 6240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John McMahon
v
Pembroke Constructions
(U2020/14152)

COMMISSIONER BISSETT MELBOURNE, 20 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 28 October 2020, Mr John McMahon 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] Mr McMahon advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Pembroke Constructions on 9 October 2020 and that his dismissal took effect on 8 October 2020 and he was notified of his dismissal on 8 October 2020.

[3] On 28 October 2020, the Commission attempted to contact Mr McMahon on his nominated mobile number to confirm his commencement date. A voicemail message was left requesting a call back to confirm date of commencement was correct as listed on his application.

[4] Later that day, the Commission emailed correspondence to Mr McMahon’s nominated email address advising Mr McMahon that based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr McMahon to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr McMahon did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr McMahon’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 9 November 2020 the Commission attempted to contact Mr McMahon via his nominated telephone number. However, Mr McMahon could not be reached. A voicemail message was left requesting he call the Commission regarding his application.

[6] Further attempts were made to contact Mr McMahon on his nominated mobile number, on 11 November 2020 and 17 November 2020 but he could not be reached, voicemail messages were left requesting he call back to discuss his application.

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

[8] 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.

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

[10] 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.

[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 Mr McMahon 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

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