Mathew Sternberg v The Star Hotel T/A Star Hotel

[2016] FWC 3974

[2016] FWC 3974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Sternberg
v
The Star Hotel T/A Star Hotel
(U2016/6077)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] On 11 April 2016, Mr Mathew Sternberg made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Sternberg advised that he commenced employment with The Star Hotel T/A Star Hotel on 26 September 2015 and that he was notified of his dismissal on 23 March 2016.

[3] On 15 April 2016, correspondence was sent to Mr Sternberg 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 Sternberg to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 27 April 2016, the Commission received correspondence from Mr Sternberg including copies of bank statements and an employment separation certificate with an employment cessation date of 28 March 2016.

[5] On 28 April 2016, the Commission attempted to contact Mr Sternberg but the call was not answered. A copy of the correspondence dated 15 April 2016 was posted to his home address.

[6] On 4 May 2016, the Commission attempted to contact Mr Sternberg but the call was not answered. Correspondence was sent to Mr Sternberg allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] On 16 May 2016, the Commission attempted to telephone Mr Sternberg and a message was left for him to contact the Commission.

[8] To date, Mr Sternberg has not contacted the Commission.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if he has 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 Sternberg 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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