Kieran Jones-Ellis v Care Traffic Services Pty Ltd

[2018] FWC 7025

[2018] FWC 7025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kieran Jones-Ellis
v
Care Traffic Services Pty Ltd
(U2018/10648)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 15 October 2018, Mr Kieran Jones-Ellis 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 (Form F2), Mr Jones-Ellis advised that he originally commenced employment with Care Traffic Services Pty Ltd (CTS) in April 2009, but that his most recent employment period with CTS commenced in late May to early June 2018. Mr Jones-Ellis further advised in his Form F2 that he was notified of his dismissal by CTS on 20 September 2018 and that it took effect on the same day.

[3] On 16 October 2018, the Commission telephoned Mr Jones-Ellis to clarify the commencement date of his employment. Mr Jones-Ellis advised that he worked intermittently for CTS as a casual employee and confirmed that his most recent employment period commenced in May 2018. The Commission informed Mr Jones-Ellis that based on this information, it did not appear he had served the minimum employment period and that his options were to either discontinue the application or have it determined by a public Decision issued by a Commission Member. When asked to elect an option, Mr Jones-Ellis terminated the telephone call.

[4] Following the telephone conversation, email correspondence was sent to Mr Jones-Ellis via his nominated email address advising that on the basis of the information provided in his application and confirmed over the telephone, he had not served the minimum employment period required by the Act. The correspondence directed Mr Jones-Ellis to file in the Commission within 14 days, any documents or evidence to support his claim of having served the minimum employment period.

[5] As no material was received from Mr Jones-Ellis, the Commission telephoned him on 25 October 2018 to enquire whether or not he wished to proceed with the matter. Mr Jones-Ellis confirmed that he wished to pursue his unfair dismissal application. The Commission again advised Mr Jones-Ellis that because he had not served the minimum employment period, the matter could not proceed and would be closed via a Decision. He was further advised that if he believed he had served the minimum employment period, he was required to respond to the correspondence emailed on 16 October 2018. Mr Jones-Ellis indicated he had not received this email, so the Commission confirmed that his nominated email address was accurate as per the Commission’s records. Moreover, the details of his intermittent casual employment with CTS were confirmed and Mr Jones-Ellis was informed that to meet the minimum employment period, he must have had continuous employment for six months. The Commission also advised Mr Jones-Ellis that it appeared he lodged his application out of time, at which point he terminated the telephone call.

[6] On 31 October 2018, a final letter was sent to Mr Jones-Ellis’ nominated email address, which had been confirmed during the telephone conversation on 25 October 2018, warning that, unless he contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 16 October 2018, the application would be determined based on the material before the Commission.

[7] To date, Mr Jones-Ellis has not responded to the Commission’s correspondence.

[8] 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.

[9] 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.”

[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] Having regard to the circumstances of this matter, I am satisfied that as Mr Jones-Elliot 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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