Lucas Evans v Aerospace NDI Pty Ltd T/A Aerospace NDI Pty Ltd

[2021] FWC 3390

[2021] FWC 3390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucas Evans
v
Aerospace NDI Pty Ltd T/A Aerospace NDI Pty Ltd
(U2021/4088)

COMMISSIONER BISSETT MELBOURNE, 11 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 12 May 2021 Mr Lucas Evans (the Applicant) 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). Mr Evans stated he had been unfairly dismissed by Aerospace NDI Pty Ltd T/A Aerospace NDI Pty Ltd (the Respondent) on 7 May 2021.

[2] Mr Evans advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Aerospace NDI Pty Ltd T/A Aerospace NDI Pty Ltd on 17 November 2020 and that his dismissal took effect on 7 May 2021.

[3] On 13 May 2021 the Commission contacted Mr Evans on his nominated telephone number. The Commission informed Mr Evans that based on the information provided on the Form F2, it appeared he had not served the minimum employment period. Mr Evans advised the dates of employment on his application were correct.

[4] Later that day, the Commission emailed correspondence to Mr Evans’s nominated email address advising Mr Evans that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Evans to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Evans did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 25 May 2021 the Commission attempted to contact Mr Evans via his nominated telephone number. However, Mr Evans could not be reached. A voicemail message was left requesting Mr Evans to contact the Commission.

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

[7] 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.

[8] 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.

[9] 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.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Evans 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 with this decision.

COMMISSIONER

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