Marie Bernard v Waratah Air Conditioning T/A Waratah Air Conditioning

[2016] FWC 8182

[2016] FWC 8182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marie Bernard
v
Waratah Air Conditioning T/A Waratah Air Conditioning
(U2016/12633)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 17 October 2016, Mr Marie Bernard made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Bernard advised that he commenced employment with Waratah Air Conditioning T/A Waratah Air Conditioning on 29 June 2016 and that his dismissal took effect on 26 September 2016.

[3] On 18 October 2016, the Fair Work Commission (the Commission) telephoned Mr Bernard to advise that on the basis of the information provided in his application, he had not served the minimum employment period. It was also confirmed that Mr Bernard had not paid the filing fee nor had a completed waiver form been received.

[4] Written correspondence was sent to Mr Bernard requiring that he advise the Commission within 14 days whether he wished to proceed with his application. The Commission further informed Mr Bernard that if he wished to discontinue his application he could sign and return a Form F50 – Notice of Discontinuance. Mr Bernard advised that he would sign and return the Notice of Discontinuance in order for his matter to be closed.

[5] On 26 October 2016, an attempt was made to telephone Mr Bernard and a voice message was left requesting that he contact the Commission in relation to a Notice of Discontinuance not having been received.

[6] On 1 November 2016, the Commission telephoned Mr Bernard regarding his intention to lodge a Notice of Discontinuance. Mr Bernard confirmed that he had received the documentation sent and intended to return a signed Notice of Discontinuance by mail. Subsequent correspondence was sent to Mr Bernard providing a further 7 days in which to reply, after which time his application would be dismissed.

[7] On 7 November 2016, another attempt was made to telephone Mr Bernard and a voice message was left advising him that that because no response had been received, his matter would to be allocated to a Member of the Commission for determination.

[8] To date, Mr Bernard has not filed a Notice of Discontinuance with the Commission or responded to the Commission’s correspondence.

[9] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)  one or more of the following apply:

(i) a modern award covers the person;

(ii)  an enterprise agreement applies to the person in relation to the employment;

(iii)  the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[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 Bernard 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.

DEPUTY PRESIDENT

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