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

[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

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

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, the matter of Michael Birrell versus Ern Smith Pty Ltd ATF the Ern Smith Discretionary Trust was presented. Michael Birrell, the applicant, sought relief from an unfair dismissal determination, contending that the decision to terminate his employment was unjust and contrary to the principles of fairness. Ern Smith Pty Ltd, represented by the Ern Smith Discretionary Trust, defended the dismissal, arguing that it was carried out in accordance with the applicable legal standards and contractual obligations.

The primary legal issues before the court involved whether the dismissal of Mr. Birrell was justified and whether the requisite minimum employment period for unfair dismissal claims was satisfied. The court had to determine whether the dismissal was for a valid reason and if Mr. Birrell had completed the necessary minimum period of continuous employment to be eligible for unfair dismissal protection. The court also needed to assess if the dismissal process adhered to the legal requirements and if the employer had acted reasonably in terminating the employment.

The court concluded that the dismissal was justified as it was based on a valid reason related to the performance and capability of the employee, aligning with the provisions of the applicable employment law. Additionally, the court found that Mr. Birrell had not fulfilled the minimum employment period required to lodge a claim for unfair dismissal. Consequently, the court dismissed the application, affirming the initial dismissal decision. The reasoning emphasized that without meeting the minimum employment threshold and the presence of a valid reason, the application for relief from unfair dismissal could not succeed. The court's decision was final, and no further orders were made beyond the dismissal of the application.

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