Michael Carstairs v Border Cleaning

[2021] FWC 3092

[2021] FWC 3092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Carstairs
v
Border Cleaning
(U2021/3627)

COMMISSIONER BISSETT MELBOURNE, 31 MAY 2021

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

[1] On 27 April 2021 Mr Michael Carstairs 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 Carstairs advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Border Cleaning on 25 January 2021. Mr Carstairs did not provide a date for when the dismissal took effect or when he was notified of his dismissal.

[3] On 29 April 2021 the Commission contacted Mr Carstairs on his nominated telephone number. Mr Carstairs advised he had not been dismissed and had not resigned. Mr Carstairs advised his start date of employment with Border Cleaning was on 25 January 2021 and the last day he worked was on 14 April 2021. The Commission advised Mr Carstairs that he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Carstairs’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Carstairs 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 Carstairs 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 11 May 2021 the Commission attempted to contact Mr Carstairs via his nominated telephone number. However, Mr Carstairs could not be reached. A voicemail message was left requesting Mr Carstairs to contact the Commission as soon as possible.

[6] To date, Mr Carstairs 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] 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.

[9] Section 587(1) 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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Carstairs 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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