Joshua Dawson v The Camfield Bar T/A the Camfield

[2021] FWC 5234

[2021] FWC 5234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Dawson
v
The Camfield Bar T/A The Camfield
(U2021/6848)

COMMISSIONER BISSETT MELBOURNE, 24 AUGUST 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 3 August 2021, Mr Joshua Dawson 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 Dawson advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with The Camfield Bar T/A The Camfield (Respondent) on 22 April 2021 and that he was notified of his dismissal on 3 August 2021.

[3] On 5 August 2021, the Commission attempted to telephone Mr Dawson on his nominated telephone number to discuss his application however Mr Dawson could not be reached. An SMS notification was also sent to Mr Dawson’s nominated telephone number, requesting that he contact the Commission in regards to his application.

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

[5] On 13 August 2021, the Commission received correspondence from the Respondent, in response to a courtesy letter sent advising them of the Form F2 application. In that correspondence the Respondent advised that Mr Dawson had not been dismissed but was stood down pending an investigation.

[6] As the required documentation was not received, on 17 August 2021 the Commission made a final attempt to contact Mr Dawson on his nominated telephone number. Mr Dawson did not answer the call. A voicemail message was left requesting he contact the Commission to discuss his application. The voicemail message also advised that if he did not contact the Commission by 19 August 2021 the matter would be referred to a Member for possible closure and that he should contact the helpline to discuss his application.

[7] To date, Mr Dawson has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[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] 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.

[10] Under s.587 of the FW Act the Commission may dismiss an application where there are grounds to do so.

[11] Section 587(1) of the FW Act provides as follows:

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 as Mr Dawson 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 FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR733141>

 1   PR733142