Mr Benjamin Drefke v Novoti Kitchens T/A Rugolos Installation

[2017] FWC 6807

[2017] FWC 6807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Benjamin Drefke
v
Novoti Kitchens T/A Rugolos Installation
(U2017/12156)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 19 DECEMBER 2017

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 13 November 2017, Mr Benjamin Drefke made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Drefke advised that he commenced employment with Novoti Kitchens T/A Rugolos Installation on 23 October 2017 and that his dismissal took effect on 3 November 2017.

[3] On the 15 November 2017, a telephone call was made to Mr Drefke and a voice message left advising that based on the information provided in his application it appears that he does not satisfy the minimum employment period. Mr Drefke was also advised to contact the Fair Work Commission (the Commission) to confirm the start date of his employment and what date his dismissal has took effect.

[4] On 15 November 2017, correspondence was sent to Mr Drefke pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Drefke to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On the 24 November 2017, a follow up telephone call was made to Mr Drefke and a voice message left advising that the Commission has not received confirmation regarding the start date of his employment and the date his dismissal had taken effect. Mr Drafke was advised to contact the Commission to advise if he wished to proceed with his application.

[6] On 29 November 2017 further correspondence was sent to Mr Drefke allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] On the 11 December 2017, a final telephone call was made to Mr Drefke and a message left advising that in order for his matter to be closed it will now be forwarded to a Member of the Commission where a decision will be made and published.

[8] To date, Mr Drefke has not replied to that correspondence or responded to any voice messages that have been left to contact the Commission.

[9] 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.

[10] Section 383 of the FW 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] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Mr Drefke has not completed the required minimum employment period. 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] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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