Matthew Dewar v Multidiscipline Solutions Pty Ltd

[2018] FWC 6624

[2018] FWC 6624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Dewar
v
Multidiscipline Solutions Pty Ltd
(U2018/8937)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 27 August 2018, Mr Matthew Dewar made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application, Mr Dewar advised that he commenced employment with Multidiscipline Solutions Pty Ltd on 6 April 2018 and his dismissal took effect on 9 August 2018.

[3] On 28 August 2018, correspondence was sent to Mr Dewar noting that his application indicated he had not been employed for the minimum employment period required under the Act. Mr Dewar was directed to file in the Commission within 14 days any documents/evidence to support his claim of having served the minimum employment period. It was noted if no contact was made, his application may be dismissed.

[4] On 6 and 11 September 2018, voicemail messages were left seeking a return call from Mr Dewar in relation to his application.

[5] On 12 September 2018, Mr Dewar telephoned the Commission and he advised he would file supplementary documents.

[6] On 26 September 2018, as no material had been received, there was a further attempt to telephone Mr Dewar, however the call was disconnected. Final correspondence was then sent to Mr Dewar via email and he was advised that unless he contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 28 August 2018, the application would be determined based on the material before the Commission.

[7] On 23 October 2018, a final attempt to contact Mr Dewar via telephone was made, however there was no answer and a voicemail message was left seeking a return call.

[8] To date, Mr Dewar has not responded to the Commission’s correspondence.

[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:

“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] 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.”

[12] Having regard to the circumstances of this matter, I am satisfied that as Mr Dewar has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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