Matthew Vincent v Stocon Group Pty Ltd

[2020] FWC 5731

[2020] FWC 5731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Vincent
v
Stocon Group Pty Ltd
(U2020/12965)

COMMISSIONER BISSETT MELBOURNE, 29 OCTOBER 2020

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 28 September 2020, Mr Matthew Vincent made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Vincent advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Stocon Group Pty Ltd on 18 June 2020 and that his dismissal took effect on 27 August 2020.

[3] On 29 September 2020, the Commission contacted Mr Vincent on his nominated telephone number. The Commission advised Mr Vincent that he had not served the minimum employment period and asked whether he would like to withdraw his application with the Commission. Mr Vincent advised he would like to dispute his unpaid wages and that his previous employer did not send any payslips. The Commission advised that the Fair Work Ombudsman and the Australian Taxation Office would best be able to assist in relation to the above matters. Mr Vincent advised he had already spoken to them. The Commission then asked Mr Vincent if he would like to be provided numbers for some free legal services and if he would like to withdraw his application before the Commission as he does not meet the minimum employment period and it is unlikely that his application will progress forward. He replied “It’s fine, no one wants to help me. Bye” and hung up.

[4] Later that day, the Commission emailed correspondence to Mr Vincent’s nominated email address advising Mr Vincent that, based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Vincent to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Vincent did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 12 October 2020 the Commission attempted to contact Mr Vincent via their nominated telephone number. However, Mr Vincent could not be reached. A voice to text message was left requesting Mr Vincent to please call the Commission urgently on 1300 799 675.

[6] To date, Mr Vincent has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

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

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

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.

[10] Section 587 of the FW Act provides that:

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.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

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

COMMISSIONER

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