Michael Birrell v Ern Smith Pty Ltd ATF the Ern Smith Discretionary Trust

[2013] FWC 8511

[2013] FWC 8511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Birrell
v
Ern Smith Pty Ltd ATF The Ern Smith Discretionary Trust
(U2013/13108)

COMMISSIONER DEEGAN CANBERRA, 7 NOVEMBER 2013

Application for relief from unfair dismissal - minimum employment period not satisfied - application dismissed.

[1] This decision arises from an application lodged on 2 September 2013 pursuant to s.394 of the Fair Work Act 2009 (the Act) by Michael Birrell (the applicant) alleging that he had been unfairly dismissed from his employment with Ern Smith Pty Ltd (the employer).

[2] The applicant indicated on his application (Form F2) that he commenced employment on 7 January 2013 and that his dismissal took effect on 12 August 2013, an employment period of 7 months and 5 days.

[3] On 1 October 2013, the employer filed their response (Form F3) and supporting documents indicating that the applicant commenced employment on 5 March 2013 and accordingly had worked for the respondent for a period of 5 months and 7 days.

[4] The Commission sent correspondence to the applicant pointing out that on the basis of the information contained in the employer’s response and supporting documents, he would not have served the minimum employment period. The correspondence advised that the Commissioner intended to dismiss his application unless he could provide evidence, by 5:00pm Friday, 25 October 2013, which indicates that he had completed the relevant minimum employment period.

[5] The applicant did not reply to that correspondence.

[6] The Commission phoned the applicant on 29 October 2013 and was informed by the applicant that he did not think he had to respond to the correspondence as he did not satisfy the minimum employment period. The applicant was then informed that he should file a notice of discontinuance. That same day, Form F50 Notice of Discontinuance was emailed to the applicant with a request to sign, date and return the form.

[7] To date, the applicant has not returned the form.

[8] 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.

[9] 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.

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

[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] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order [PR544271] to this effect will be issued shortly.

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