Joseph Meccariello v The Golden Mile Loopline Railway Society Inc

[2015] FWC 8112

[2015] FWC 8112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Meccariello
v
The Golden Mile Loopline Railway Society Inc.
(U2015/11329)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] On 26 August 2015, Mr Joseph Meccariello made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Joseph Meccariello advised that he commenced employment with The Golden Mile Loopline Railway Society Inc. 27 February 2015. He was given notice of the termination on 24 August 2015 and the effective date of termination was 31st August 2015.

[3] On 28 August 2015, correspondence was sent to Mr Meccariello pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence directed Mr Meccariello to complete an Outline of Argument: Minimum Employment Period and a Statement of Evidence. He was advised that if he did not provide a response then I would determine the matter on the material before me.

[4] On 15 September 2015 Mr Maccariello was advised that he had not filed the documents. Mr Meccariello was contacted again on 16 October 2015 about his non-compliance.

[5] Mr Meccariello replied on 19 October 2015 but did not address the issues of minimum period of employment. He did note that while he was told of his dismissal by telephone he did not receive written notification for another 2 weeks as the letter had been sent to his precious address.

[6] 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.

[7] 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.

[8] The facts in this matter are not in dispute so I am not required to have a hearing.

[9] As Mr Meccariello commenced employment on 27th February 2015 and he was given notice of the termination on 24^th August 2015, I am satisfied Mr Meccariello 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

(c) the application has no reasonable prospects of success.

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

DEPUTY PRESIDENT

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