Mitchell Harris v Oxworks

[2018] FWC 1667

[2018] FWC 1667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Harris
v
Oxworks
(U2018/1010)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 MARCH 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 2 February 2018, Mr Mitchell Harris made an application for a remedy for unfair dismissal to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair dismissal application, Mr Harris advised that he had been notified of his dismissal from his employer Oxworks on 31 January 2018, with it taking effect the same day. However, the application field by Mr Harris was incomplete as he did not provide the date that he commenced employment with Oxworks.

[3] On the same day, the Commission attempt to contact Mr Harris by telephone to advise that his application was incomplete. As he did not answer the call, a voicemail message was left requesting that he return the Commission’s call. Email correspondence was subsequently sent to Mr Harris’ nominated email address advising him that he had not provided the date that he commenced employment. The correspondence advised that in the absence of any advice within 14 days his application may be dismissed.

[4] On 8 February 2018, Mr Harris sent email correspondence to the Commission advising that he had commenced employment with Oxworks on 6 September. The Commission then contacted Mr Harris by telephone to confirm the year he commenced employment with Oxworks. On this call, Mr Harris confirmed that he had commenced employment on 6 September 2017. The minimum employment period required to make an unfair dismissal application was then outlined to Mr Harris.

[5] On 8 February 2018, email correspondence was also sent to Mr Harris by the Commission advising him that on the basis of the information he had provided, he had not served the minimum employment period. This correspondence required within 14 days any documents/evidence to support Mr Harris’ claim he had served the minimum employment period be provided to the Commission. Mr Harris was advised in the absence of material being received, his application may be dismissed.

[6] On 13 March 2018, further email correspondence was sent to Mr Harris’ email addresses which advised that unless contact was made with the Commission within seven days with an explanation as to why he did not respond to the direction contained in the previous letter, the application would be determined based on the material before the Commission.

[7] To date, Mr Harris has not responded to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] Having regard to the circumstances of this matter, I am satisfied Mr Harris has not completed the required minimum employment period and his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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