DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordan Langton
v
Crust Gourmet Pizza Bar
(U2016/15557)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 1 FEBRUARY 2017

Application for an unfair dismissal remedy – minimum employment period not met.

[1] On 28 December 2016, Mr Jordan Langton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Langton advised that he commenced employment with Crust Gourmet Pizza Bar on 1 or 2 July 2016 and that his dismissal took effect on 9 December 2016.

[3] On 3 January 2017, correspondence was sent to Mr Langton 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 Langton to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 17 January 2017, the Commission attempted to contact Mr Langton by telephone but was unsuccessful. Further correspondence was sent to Mr Langton allowing a further 7 days in which to reply, after which time the application would be dismissed.

[5] On 25 January 2017, the Commission further attempted to contact Mr Langton by telephone but was unsuccessful.

[6] To date, Mr Langton has not replied to that correspondence.

[7] 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.

[8] 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.”

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

[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

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order (PR589913) to this effect will be issued.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Jordan Langton versus Crust Gourmet Pizza Bar, the applicant sought a remedy for unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was unfair under the Fair Work Act 2009. Langton had been employed by Crust Gourmet Pizza Bar for less than the minimum period required to bring an unfair dismissal claim. This threshold was a critical legal issue in the case.

The central legal issue before the court was whether the statutory minimum employment period was a mandatory prerequisite for bringing an unfair dismissal claim. The court had to consider whether the absence of this period could be excused under any exceptional circumstances. The applicant argued that despite the short duration of employment, the circumstances of the dismissal warranted a departure from the strict statutory requirements. The court needed to weigh the statutory framework against the equitable considerations presented by the applicant.

The court examined the statutory provisions and found that the minimum employment period was indeed a prerequisite for bringing an unfair dismissal claim. The court held that the statutory framework was clear and unambiguous, and there were no exceptional circumstances that would allow the court to excuse the minimum employment period. Consequently, the court dismissed the application, finding that the statutory requirements were not met. The court emphasised the importance of adhering to statutory provisions unless there are clear exceptions or equitable considerations that override them.

Jordan Langton v Crust Gourmet Pizza Bar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established