Luke Horton v Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living

[2021] FWC 1227

[2021] FWC 1227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Horton
v
Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living
(U2021/981)

COMMISSIONER BISSETT MELBOURNE, 9 MARCH 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 7 February 2021, Mr Luke Horton 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).

[2] Mr Horton advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Gold Lahne Pty Ltd T/A Kingaroy Betta Home Living on 16 November 2020 and that his dismissal took effect on 5 February 2021.

[3] On 9 February 2021, the Commission contacted Mr Horton on his nominated telephone number. The Commission advised Mr Horton that he had not served the minimum employment period. Mr Horton advised that he first began working with Betta Home Living in January 2020 and there was a transfer of business in November 2020. He advised that the new owner initially recognised his previous service, but not anymore. The Commission advised Mr Horton he would need to provide documents/evidence to show he has worked for the minimum employment period if he wished to continue with his application.

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

[5] As the required documentation was not received, on 22 February 2021 the Commission attempted to contact Mr Horton via his nominated telephone number. However, Mr Horton could not be reached. A voicemail message was left advising that the Commission had not received documents/evidence from him regarding his previous service and that if he wished to proceed with his application he would need to respond by 23 February 2021. The Commission advised Mr Horton that his application may be dismissed if the requested information was not received.

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

[9] 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.

[10] 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.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Horton 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 shortly.

COMMISSIONER

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