Lachlan Meredith v Outback Restoration & Construction

[2020] FWC 1714

[2020] FWC 1714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lachlan Meredith
v
Outback Restoration & Construction
(U2020/1688)

COMMISSIONER BISSETT MELBOURNE, 1 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 17 February 2020, Mr Lachlan Meredith made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The Form F2 (application form) filed by Mr Meredith was incomplete in that the form did not include the commencement date of employment with Outback Restoration & Construction (Respondent). Mr Meredith stated that the dismissal took effect on 10 February 2020. As a result it was not possible to determine if Mr Meredith had served the minimum employment period.

[3] On 17 February 2020 the Commission sent an SMS to Mr Meredith’s nominated telephone number requesting he call the Commission to discuss his application. On the same day the Commission emailed correspondence to Mr Meredith’s nominated email address advising him to complete the Form F2 in relation to the date he began working for the Respondent. Mr Meredith was also advised that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence warned that if Mr Meredith did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed.

[4] On 18 February 2020 the Commission telephoned Mr Meredith to discuss his application. Mr Meredith answered the call and advised that when he commenced work with the Respondent on 16 September 2019 he sustained a workplace injury. Mr Meredith said he was considering withdrawing his unfair dismissal application and lodging an alternative application but would need to discuss this first with his legal representative.

[5] Following the telephone discussion the Commission emailed correspondence to Mr Meredith advising that on the basis of the information provided it did not appear he had served the minimum employment period required by the FW Act. Mr Meredith was directed to provide any documents/evidence to support his claim of having served the minimum employment period within 14 days. He was also advised that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Meredith was advised that if he did not contact the Commission within 14 days his application may be dismissed. An SMS was also sent to Mr Meredith asking him to contact the Commission.

[6] On 3 March 2020 final correspondence was emailed to Mr Meredith’s nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s direction, his application would be determined based on the material before the Commission. Mr Meredith did not respond

[7] On 4 March 2020 the Commission made a final attempt to telephone Mr Meredith on his nominated mobile telephone number. Mr Meredith did not answer the call and a voicemail message was left requesting he contact the Commission to advise if he intended to pursue his application.

[8] To date, Mr Meredith has not responded to the Commission’s correspondence, payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[9] Section 395 of the FW Act which deals with application fees provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[10] 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.

[11] 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.

[12] Having regard to the circumstances of this matter, I am satisfied that as Mr Meredith has not completed the required minimum employment period, her application has no reasonable prospects of success.

[13] Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the Application was not made in accordance with the FW Act. 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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