Justin Glasgott v Longbow Group

[2022] FWC 23

[2022] FWC 23

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Glasgott

v

Longbow Group

(U2021/11279)

cOMMISSIONER bISSETT MELBOURNE, 10 January 2022

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

1. On 7 December 2021, Mr Justin Glasgott (Applicant) 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).

1. The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with Longbow Group on 29 June 2021 and that his dismissal took effect on 7 December 2021.

1. On 8 December 2021 the Commission attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to discuss his application.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that, if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As the required documentation was not received, on 20 December 2021 the Commission telephoned the Applicant to discuss his application. The Applicant answered the call and advised that the answers he had provided in the Form F2 were correct. The Commission pointed out that on the basis of the information provided in the Form F2 the minimum employment period had not met. It was suggested that the Applicant seek legal advice on the matter. The Applicant was also advised of the General Protections provisions under s.365 of the FW Act and informed that he should file a Notice of Discontinuance if he did not wish to proceed with his matter. The applicant was also advised that if the requested documentation was not received within 2 days the Commission may consider dismissing the application.

1. To date the Applicant has not provided the requested documentation and he has not filed a Notice of Discontinuance.

1. 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.

1. In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

1. 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.

1. Section 587(1) of the FW Act provides that:

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.

1. Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR737339

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<PR737338>