Mathew Condren v Samir Bargshoon T/A Sam's Bargain Buys

[2016] FWC 477

[2016] FWC 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Condren
v
Samir Bargshoon T/A Sam’s Bargain Buys
(U2015/15004)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 12 November 2015, Mr Matthew Condren made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Condren advised that he commenced employment with Samir Bargshoon on 8 January 2015 and that his dismissal took effect on 27 June 2015.

[3] On 13 November 2015, correspondence was sent to Mr Condren’s solicitor, Mr Johnson, pointing out that on the basis of the information contained in the application, Mr Condren had not served the minimum employment period. The correspondence required that advice be provided to the Fair Work Commission within 14 days about whether Mr Condren wished to proceed with his application.

[4] There was no response to that correspondence.

[5] On 24 November 2015, a Commission staff member spoke with Mr Condren’s solicitor, Mr Johnson, who advised that Mr Condren was moving house and not answering his phone. Mr Johnson advised he would keep trying to contact Mr Condren.

[6] On 1 December 2015, further correspondence was sent to Mr Johnson, advising that unless advice was received by the Commission within 14 days, Mr Condren’s application would be dismissed.

[7] On 12 December 2015, a Commission staff member telephoned Mr Johnson who advised he had not been able to contact Mr Condren for instructions. He said he would continue to attempt to contact Mr Condren. On the same day, the Commission rang Mr Condren and left a voicemail, asking that he telephone his solicitor urgently regarding his application.

[8] On 14 January 2016, Mr Johnson advised my chambers that he has attempted to contact Mr Condren without success. He said he had telephoned and sent text messages with no response. On the same day, I caused a text message to be sent to Mr Condren which advised that if he did not contact my chambers by 5.00pm on 21 January 2016, his application would be dismissed.

[9] Mr Condren did not contact the Commission.

[10] 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.

[11] 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.

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

[13] 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.

[14] 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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