Lloyd Milne v Century Yuasa Batteries Pty Ltd T/A Century Batteries

[2014] FWC 3217

[2014] FWC 3217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lloyd Milne
v
Century Yuasa Batteries Pty Ltd T/A Century Batteries
(U2014/1101)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 MAY 2014

Application for relief from unfair dismissal dismissed.

[1] On 4 April 2014, Mr Lloyd Milne made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Milne advised that he commenced employment with Century Yuasa Batteries Pty Ltd T/A Century Batteries on 12 December 2013 and was notified of his dismissal on 17 March 2014.

[3] On 8 April 2014, correspondence was sent to Mr Milne pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Milne to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] Mr Milne responded to that correspondence on 21 April 2014 and advised that he wanted to proceed with his application. In that email he advised that his employer had waived the 6 month period.

[5] On 30 April 2014, I issued directions for Mr Milne to file submissions to support his claim that he is protected from unfair dismissal by close of business 14 May 2014. I referred Mr Milne to ss.382 and 383 of the Act.

[6] Mr Milne did not file any material in response to my directions to support his claim.

[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:

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] While Mr Milne advised that his employer had waived the probation period this is not relevant to the calculation of the minimum employment period. The minimum employment period cannot be waived by the parties. A person is not protected from unfair dismissal if the person has not served the minimum employment period.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[12] Section 587(1)(c) of the Act provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

...

(c) the application has no reasonable prospects of success.

[13] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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