Kyle Watson v Australian Leisure & Hospitality Group T/A Pty Ltd

[2020] FWC 6862

[2020] FWC 6862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyle Watson
v
Australian Leisure & Hospitality Group T/A Pty Ltd
(U2020/15032)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2020

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

[1] On 19 November 2020 Mr Kyle Watson 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] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. Mr Watson advised in the Unfair Dismissal Application (Form F2) that his dismissal took effect on 28 October 2020. Mr Watson lodged his application on 19 November 2020 therefore his application was one day late.

[3] Additionally, Mr Watson advised in the Form F2 that he commenced employment with Australian Leisure & Hospitality Group T/A Pty Ltd on 31 July 2020 and that his dismissal took effect on 28 October 2020.

[4] On 20 November 2020, the Commission attempted to contact Mr Watson on his nominated telephone number. A voicemail message was left requesting Mr Watson urgently contact the Commission.

[5] Later that day, Mr Watson returned the phone call. The Commission advised Mr Watson that he had not served the minimum employment period. Mr Watson said that he had been guided to the Form F2 by the Fair Work Ombudsman. The Commission informed that in any case, it did not appear he had served the minimum employment period set out in the FW Act and therefore is ineligible for a remedy for unfair dismissal. Mr Watson stated that he was concerned about withdrawing the application as he was conscious of the timeframes for lodgement. The Commission suggested that Mr Watson seek independent legal advice.

[6] Later that day, the Commission emailed correspondence to Mr Watson’s nominated email address advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Watson 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 Mr Watson did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Watson’s nominated telephone number, requesting that he contact the Commission.

[7] As the required documentation was not received, on 2 December 2020 the Commission attempted to contact Mr Watson on his nominated telephone number. However, Mr Watson could not be reached. Again a voicemail message was left requesting that Mr Watson urgently contact the Commission.

[8] On 7 December 2020 the Commission attempted to contact Mr Watson on his nominated telephone number. A final voicemail message was left requesting an urgent call to the Commission.

[9] On 16 December 2020, my Chambers emailed Mr Watson requesting that should he wish to formally withdraw his application for unfair dismissal remedy to contact the Commission by 4:00pm 21 December 2020.

[10] To date, Mr Watson has not replied to the Commission’s correspondence.

[11] 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.

[12] In the circumstances of this matter, I am satisfied Mr Watson has not completed the required minimum employment period and his application has no reasonable prospects of success.

[13] 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.

[14] 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 prospect of success.

[15] Having regard to the circumstances of this matter I am satisfied that as Mr Watson has not completed the required minimum employment period under the FW Act, his/her 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

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