Leroy Bailey v Total Ventilation and Hygiene

[2022] FWC 2744

[2022] FWC 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leroy Bailey
v

Total Ventilation and Hygiene

(U2022/9481)

COMMISSIONER BISSETT MELBOURNE, 14 OCTOBER 2022

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

1. On 23 September 2022 Mr Leroy Bailey 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. Mr Bailey advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Total Ventilation and Hygiene on 18 July 2022 and that he was notified of his dismissal on 2 August 2022.

1. On 25 September 2022 the Commission emailed correspondence to Mr Bailey’s nominated email address advising Mr Bailey that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Bailey to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Bailey 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 7 October 2022 the Commission attempted to contact Mr Bailey via his nominated telephone number. However, an automated message indicated that the call was unable to be completed.

1. Later that day the Commission emailed correspondence to Mr Bailey’s nominated email address and his representative’s nominated email address advising that if the required information was not received by 9 October 2022 the matter may be dismissed without further notice.

1. To date, Mr Bailey has not replied to the Commission’s correspondence.

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. 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 prospect of success.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Bailey 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] PR746796

Printed by authority of the Commonwealth Government Printer

<PR746795>