Michael Parker v Bunnings Group Limited T/A Bunnings

[2016] FWC 8562

[2016] FWC 8562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Parker
v
Bunnings Group Limited T/A Bunnings
(U2016/11296)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 11 September 2016, Mr Michael Parker made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Parker advised that he commenced employment with Bunnings Group Limited T/A Bunnings on 20 June 2016 and that his dismissal took effect on 31 August 2016.

[3] On 13 September 2016, Mr Parker was advised via telephone that on the basis of the information contained in the application, he had not served the minimum employment period. Mr Parker said that he had spoken to a lawyer who advised him not to worry about the qualifying period as he had a strong case. The Fair Work Commission staff member suggested to Mr Parker that he speak to his lawyer again in light of what he had just been told about the minimum employment period.

[4] On 14 September 2016, correspondence was sent to Mr Parker which noted that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence required Mr Parker to file in the Commission within 14 days any documents and evidence to support the fact he had served the minimum employment period. Mr Parker was advised that in the event no documents or evidence were received, his application may be dismissed.

[5] As no material had been filed, on 4 October 2016 the Commission attempted to contact Mr Parker by telephone and left a voicemail. On the same day, further correspondence was sent to Mr Parker allowing a further 14 days in which to reply and to file any documents in support of having served the minimum employment period. Mr Parker was advised that in the event no documents or evidence were received, his application may be dismissed.

[6] On 6 October 2016, Mr Parker contacted the Commission by telephone. He said that his legal advice was that he could pursue his matter without meeting the minimum employment period. The Commission staff member told Mr Parker that this was not the case and that the minimum employment period needed to be served in an application under s.394 of the Act.

[7] On 25 October 2016, the Commission attempted to contact Mr Parker by telephone to ascertain how he wished to proceed with the matter, however, this was unsuccessful. Further correspondence was sent to Mr Parker allowing seven days to reply, advising that if no explanation of why the previous direction to file material was addressed, the application would be determined based on the material before the Commission.

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

[12] 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.”

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

DEPUTY PRESIDENT

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