Luke Gardner v Lynwood Supa IGA Gold Medal Corporation T/A Lynwood Supa IGA

[2015] FWC 3828

[2015] FWC 3828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Gardner
v
Lynwood Supa IGA Gold Medal Corporation T/A Lynwood Supa IGA
(U2015/3343)

COMMISSIONER WILSON MELBOURNE, 12 JUNE 2015

Application for relief from unfair dismissal.

[1] On 20 February 2015, Mr Luke Gardner made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Gardner advised that he commenced employment with Lynwood Supa IGA Gold Medal Corporation T/A Lynwood Supa IGA on 26 August 2014 and that his dismissal took effect on 12 February 2015.

[3] On 18 March 2015, correspondence was sent to Mr Gardner 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 Gardner to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On the same day, the Commission attempted to call Mr Gardner and a message was left with a friend who answered the call.

[5] On 1 April 2015 and 20 April 2015, voicemail messages were left on Mr Gardner’s phone requesting he contact the Commission.

[6] On 1 May 2015, further correspondence was sent to Mr Gardner allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] On same day, a further voicemail message was left for Mr Gardner to contact the Commission.

[8] To date, Mr Gardner has not replied to that correspondence.

[9] 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.

[10] 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.

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

[12] 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR568094>