Jonathan Hair v Hanson Contraction Materials

[2019] FWC 151

[2019] FWC 151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Hair
v
Hanson Contraction Materials
(U2018/11834)

COMMISSIONER BISSETT MELBOURNE, 11 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 17 November 2018, Mr Jonathan Hair made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Hair advised that he commenced employment with Hanson Contraction Materials (HCM) on 18 June 2018 and that he was notified of his dismissal on 23 October 2018, with the dismissal taking effect on the same day.

[3] On 21 November 2018, the Commission attempted to telephone Mr Hair but was unable to reach him and a voicemail message was left. Following this, the Commission sent email correspondence to Mr Hair via his nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Hair to file in the Commission, within 14 days, any documents or evidence to support his claim of having served the minimum employment period.

[4] On each day of 4 and 18 December 2018, the Commission attempted to telephone Mr Hair and, as he could not be reached, left voicemail messages seeking his return call. Following the unsuccessful attempt on 18 December 2018, the Commission sent final correspondence to Mr Hair noting that, unless he contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 21 November 2018, the application would be determined based on the material before the Commission.

[5] During the conversation, the Commission staff member confirmed Mr Hair’s telephone number and email address. Mr Hair denied receiving any voicemail messages or emails from the Commission, and confirmed his employment commencement and termination dates as per his Form F2. The Commission’s records indicate that Mr Hair terminated the telephone call before further advice could be provided.

[6] The Commission made a final attempt to telephone Mr Hair on 10 January 2019. Mr Hair could not be reached and a voicemail message was left.

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

[8] 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.

[9] 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.”

[10] 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.”

[11] Having regard to the circumstances of this matter, I am satisfied that as Mr Hair has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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