Justin Duncombe v Kayes Fencing Pty Ltd

[2019] FWC 1246

[2019] FWC 1246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Duncombe
v
Kayes Fencing Pty Ltd
(U2019/521)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 17 January 2019, Mr Justin Duncombe 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, Mr Duncombe advised that he commenced employment with Kayes Fencing Pty Ltd on 7 August 2018 and that he was notified of his dismissal on 9 January 2019, with the dismissal taking effect the same day.

[3] On 17 January 2019, the Commission contacted Mr Duncombe to advise him that it did not appear he had served the minimum employment period. In response, Mr Duncombe indicated that he had made an appointment to obtain legal advice and may lodge an alternate application. Mr Duncombe was subsequently advised by the Commission to file his alternate application within the statutory time limit of 21 days and that he could only have one application pertaining to his dismissal, so would be required to withdraw his unfair dismissal application.

[4] Following the telephone call, the Commission sent Mr Duncombe email correspondence advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Duncombe to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period, and further warned that if he did not contact the Commission within 14 days, his application may be dismissed without further notice.

[5] On 1 February 2019, the Commission attempted to telephone Mr Duncombe but was unable to reach him. A voicemail message was left seeking his return call. Following this, final correspondence was emailed to Mr Duncombe noting that the Commission had not received any material from him and warning that if he did not provide an acceptable explanation as to why he did not respond to the direction contained in the correspondence dated 17 January 2019 within seven days, his application would be determined on the material currently before the Commission.

[6] To date, the Commission has not received any documentation or further correspondence from Mr Duncombe.

[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] 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.”

[9] Having regard to the circumstances of this matter, I am satisfied that as Mr Duncombe 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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