Mr Christopher Aldridge v ALH Group

[2019] FWC 1957

[2019] FWC 1957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Christopher Aldridge
v
ALH Group
(U2018/13523)

DEPUTY PRESIDENT BINET PERTH, 27 MARCH 2019

Application for an unfair dismissal remedy – application dismissed – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 24 December 2018, Mr Christopher Aldridge (Mr Aldridge) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by ALH Group (ALH).

[2] Mr Aldridge advised that his employment with ALH commenced on 2 July 2018 and that he was notified of his dismissal on 5 December 2018.

[3] 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.

[4] Section 383 of the FW Act defines 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.”

[5] On 31 December 2018 a phone call was made to Mr Aldridge and a voicemail message was left asking him to contact the FWC. The same day correspondence was sent to Mr Aldridge pointing out that on the basis of the information contained in the Application; he had not served the minimum employment period required by the FW Act in order to be eligible for a remedy for unfair dismissal. The correspondence required Mr Aldridge to advise the FWC within 14 days whether he wished to proceed with the Application.

[6] On 10 January 2019 the FWC contacted Mr Aldridge by telephone. There was no answer and a message was left for Mr Aldridge to contact the FWC. On the same day a further email was sent to Mr Aldridge requesting that Mr Aldridge contact the FWC in relation to the minimum employment period. Mr Aldridge responded as follows:

“So are you saying that it will be dismissed just because I was there for 5 months instead of 6 months? Because I know how the venue manager dismissed me was unfair and unprofessional.”

[7] The FWC responded to Mr Aldridge’s email by providing him with further information about the minimum employment period and suggestions as to how he might obtain legal advice in relation to his workplace rights.

[8] On 23 January 2019 a further email was sent to Mr Aldridge informing him that he had seven days to provide further information in support of the Application. Mr Aldridge did not respond.

[9] On 27 February 2019, the parties were issued with Directions which required Mr Aldridge to file and serve by 4pm on 5 March 2019 submissions and evidence to demonstrate that he had served the minimum employment period with ALH (Directions). The Directions provided that if Mr Aldridge did not file the materials as required ALH was invited to apply for the Application to be dismissed.

Mr Aldridge did not file any materials by the filing date specified in the Directions.

[10] On 12 March 2019, ALH filed with Chambers and served on Mr Aldridge an application for the matter to be dismissed pursuant to sections 399A of the FW Act (Dismissal Application).

[11] ALH submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Aldridge unreasonably failed to comply with a direction of the FWC when he failed to file his materials in accordance with the Directions.

[12] On the morning of 12 March 2019 an email, was sent to the parties advising Mr Aldridge that he had until noon on 14 March 2019 to file submissions as to why the Application should not be dismissed.

[13] Section 399A of the FW Act provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[14] On his own evidence Mr Aldridge had been employed for less than 6 months.

[15] To date the FWC has not received any correspondence, written submissions or evidence from Mr Aldridge with respect to his period of employment or his failure to file such materials in accordance with the Directions. I am therefore satisfied that Mr Aldridge has failed to comply with a direction of the FW Commission in relation to his Application.

[16] On the application of ALH and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR706190] will be issued with this decision.

DEPUTY PRESIDENT

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