Keo Davis v Vivid Glass Windows and Doors Pty Ltd

[2022] FWC 1473

[2022] FWC 1473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair dismissal

Keo Davis
v

Vivid Glass Windows and Doors Pty Ltd

(U2022/4651)

COMMISSIONER PLATT ADELAIDE, 10 JUNE 2022

Application for an unfair dismissal remedy – jurisdictional objection – whether Applicant met minimum employment period – jurisdictional objection upheld – application dismissed.

1. On 21 April 2022, Mr Keo Davis lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Vivid Glass Windows and Doors Pty Ltd (the Respondent) which took effect on 20 April 2022. On the Applicant’s Form F2 Application, his commencement date is listed as 19 October 2021.

1. On 20 May 2022, the Respondent filed a Form F3 Employer Response which raised a jurisdictional objection on the basis that Mr Davis had not completed the minimum employment period (MEP) and was thus not protected from unfair dismissal pursuant to s.382 of the Act.

1. The matter was allocated to my Chambers on 1 June 2022.  

1. A Directions Conference was held on 2 June 2022. Despite multiple attempts from my Associate to contact with the Applicant, he did not attend the Directions Conference. Directions for the filing of material were issued on 2 June 2022, including advice to the Applicant that if he failed to file material, I may make my determination based solely on the material filed by the Respondent. The Hearing was conducted on 10 June 2022.  

1. Despite numerous attempts to contact the Applicant at the commencement of the Hearing, the Applicant did not attend. The Respondent sought to be represented by Ms Kim Dinh at the Hearing. Permission was granted under s.596(2)(a) of the Act on the basis of complexity and efficiency.

1. I received the material filed by the Respondent. The Respondent’s position is summarised as below:

·  On 15 October 2022, the Applicant attended the Respondent’s workshop to complete an unpaid two-hour trial shift. Upon completion of the shift, the Respondent offered him a full-time position commencing on 18 October 2021.

·  On 16 October 2021, the Applicant sent the Respondent a text message requesting for his commencement date to be Monday, 25 October 2021. This was agreed by the Respondent.

·  On 18 October 2021, the Respondent sent the Applicant a bundle of documents including an Offer of Employment letter, which listed the commencement date as being 25 October 2021.

·  On 25 October 2021, the Applicant commenced his role with the Respondent.

·  The Applicant was dismissed on 20 April 2022.  

·  The Respondent is not a small business.

·  The Applicant was employed for 5 months and 26 days.

1. I am satisfied that the Applicant commenced employment on 25 October 2021. As such, the Applicant has not been employed for the minimum employment period, being six months.  

1. As the Applicant did not meet the minimum employment period as defined in s.383(b) of the Act, he is not protected from unfair dismissal under s.382.

1. The Application must be dismissed. An Order[1] reflecting this Decision will be issued concurrently.

COMMISSIONER

Appearances (by telephone):

No appearance for the Applicant.
K Dinh for the Respondent.

Hearing details:

Adelaide
2022:
June 10.

[1] PR742555

Printed by authority of the Commonwealth Government Printer

<PR742539>