Mark Lonsdale v Meluca Group Pty Ltd T/A Drouin Waste Recyclers

[2015] FWC 2785

[2015] FWC 2785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Lonsdale
v
Meluca Group Pty Ltd T/A Drouin Waste Recyclers
(U2015/3852)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 APRIL 2015

Application for relief from unfair dismissal.

[1] On 11 March 2015, Mr Mark Lonsdale made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Lonsdale advised that he commenced employment with Meluca Group Pty Ltd on 14 October 2014 and that his dismissal took effect on 23 February 2015.

[3] On 18 March 2015, in error, the matter was listed for a conciliation conference. Notification that the conciliation was cancelled was sent on 27 March 2015.

[4] On 27 March 2015, correspondence was sent to Mr Lonsdale 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 Lonsdale to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[5] On 1 April 2015, Mr Lonsdale phoned the Commission and advised he wanted his application to proceed.

[6] On 15 April 2015, I caused correspondence to be sent to Mr Lonsdale asking that he provide documentary evidence that he had served the minimum employment period by noon on 22 April 2015.

[7] On 17 April 2015, Mr Lonsdale contacted the Commission and he was given the contact phone number for Job Watch to seek legal advice. He was reminded that material was due to be filed by noon on 22 April 2015.

[8] On 22 April 2015, Mr Lonsdale advised a Commission staff member that he could not produce the documents and Job Watch had advised him that he should have filed a General Protections application. Mr Lonsdale said he still wanted to continue his application as a matter of principle.

[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:

“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 Lonsdale 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 section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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