Jordan Davis v Dollar Curtins & Blinds Pty Ltd

[2019] FWC 1170

[2019] FWC 1170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Davis
v
Dollar Curtins & Blinds Pty Ltd
(U2018/13310)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 22 December 2018, Mr Jordan Davis 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 Davis advised that he commenced employment with Dollar Curtins & Blinds Pty Ltd on 2 October 2018 and that he was notified of his dismissal on 21 December 2018, with the dismissal taking effect on the same day.

[3] On 24 December 2018, the Commission attempted to telephone Mr Davis but was unable to reach him. A voicemail message was therefore left for Mr Davis, advising that there may be issues with him not meeting the minimum employment period and further advising that an email would be sent to him. Following this, the Commission sent email correspondence to Mr Davis’ nominated email address advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence also directed Mr Davis to file in the Commission within 14 days any documents or evidence to support his claim that he had served the minimum employment period.

[4] On both 28 December 2018 and 3 January 2019, the Commission attempted to telephone Mr Davis and left a voicemail message on each occasion as he was unable to be reached.

[5] On 8 January 2019, email correspondence was sent to Mr Davis’ nominated email address noting that unless he advised the Commission within seven days that he wished to proceed with his application, the application would be dismissed.

[6] As no response was received from Mr Davis, the Commission attempted to telephone him on 10 January 2019 but as he could not be reached, a voicemail message was left seeking his return call. Following this, further email correspondence was sent to Mr Davis’ nominated email address seeking his advice on whether he intended to continue with his application.

[7] On 15 January 2019, the Commission attempted three telephone calls to Mr Davis. The Commission’s records indicate that on the first attempt, the line was busy; on the second attempt, the telephone call dialled out and diverted to Mr Davis’ voicemail bank; and on the third attempt, the telephone call did not dial and was diverted directly to his voicemail bank.

[8] On 1 February 2019, the Commission made a final attempt to telephone Mr Davis but was unable to reach him. A voicemail message was left advising that Mr Davis had not met his minimum employment period, but that he could withdraw his application and receive a refund of his application fee. The Commission also advised Mr Davis in the voicemail message that if his application was dismissed by way of a Decision, he may not be eligible for this refund.

[9] To date, the Commission has not received any response from Mr Davis.

[10] 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.

[11] 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.”

[12] 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.”

[13] Having regard to the circumstances of this matter, I am satisfied that as Mr Davis 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.

DEPUTY PRESIDENT

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