Liam Keil v Bushrangers Bistro T/A the Birdcage

[2018] FWC 3396

[2018] FWC 3396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Liam Keil
v
Bushrangers Bistro T/A The Birdcage
(U2018/4279)

DEPUTY PRESIDENT DEAN SYDNEY, 12 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 24 April 2018, Mr Liam Keil made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Kiel’s application states that he commenced employment with the Respondent on 9 October 2017 and that his dismissal took effect on 10 April 2018. In its Form F3, Employer Response, the Respondent submitted that it is a small business employer with fewer than 15 employees. This was not disputed by Mr Kiel.

[3] On 15 May 2018, correspondence was sent to Mr Kiel indicating that, based on the information contained in his application and the Employers Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Kiel to file a statement within seven days to support his claim of having served the minimum employment period.

[4] On 29 May 2018, correspondence was sent to Mr Kiel noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4:00pm on Friday 1 June 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[5] On 5 June 2018 my associate telephoned Mr Kiel as no material had been filed by him. He said that he wished to proceed with his application and would file a response by no later than 12:00 pm on 7 June 2018.

[6] To date, Mr Kiel has not filed any material.

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Mr Kiel has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An Order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR607991>