Lucas Lines v Super F Series Spares

[2017] FWC 4324

[2017] FWC 4324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lucas Lines

v

Super F Series Spares

(U2017/6963)

Deputy President Clancy MELBOURNE, 18 AUGUST 2017

Application for an unfair dismissal remedy.

1. On 29 June 2017, Mr Lucas Lines made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Lines advised that he commenced employment with Super F Series Spares on 15 February 2017 and that his dismissal took effect on 29 June 2017.

1. On 30 June 2017, the Fair Work Commission (the Commission) made a telephone call to the contact number provided in Mr Lines’ application and a staff member spoke with his sister, Ms Rebecca Lines, who advised she would be assisting with his application. In this telephone conversation, the Commission advised Ms Lines as to the minimum employment period requirement under the Act. On the same day, the Commission sent correspondence confirming that based on the information contained in Mr Lines’ application, it appeared he had not served the minimum employment period. The correspondence required Mr Lines to file in the Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days.  Mr Lines was advised in the absence of any material being received, his application may be dismissed.

1. On 11 July 2017, the Commission contacted Ms Lines via telephone and she requested that a Form F50 – Notice of Discontinuance be sent to her. On the same day, the Commission also sent Ms Lines a letter containing information regarding the minimum employment period. On 17 July 2017, the Commission emailed Ms Lines to advise that as she was inadvertently sent an unedited version of the letter on 11 July 2017, an amended letter with the correct details was attached.

1. On 26 July 2017, as no further correspondence had been received by the Commission in relation to Mr Lines’ application, an attempt was made to telephone Ms Lines however this was unsuccessful and a voice message could not be left.

1. On 28 July 2017, further correspondence was sent by the Commission, noting that Mr Lines had previously been directed to file material in support of his claim he had served the minimum employment period but had not done so.  Mr Lines was given a further seven days to provide an explanation of why he did not respond to the direction contained in the correspondence of 30 June 2017.  Mr Lines was advised that if there was no response, his application would be determined on the material currently before the Commission.

1. To date, Mr Lines has not responded to the Commission’s correspondence.

1. 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.

1. 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.

1. 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.

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