Mr Clinton James Vercon v Cheval Proprtie
[2022] FWC 2779
•17 OCTOBER 2022
| [2022] FWC 2779 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Clinton James Vercon
v
Cheval Proprtie
(U2022/9566)
| COMMISSIONER BISSETT | MELBOURNE, 17 OCTOBER 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 27 September 2022 Mr Clinton James Vercon 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).
Mr Vercon advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Cheval Proprtie on 15 August 2022 and that his dismissal took effect on 10 September 2022.
On 29 September 2022 the Commission attempted to contact Mr Vercon on his nominated telephone number, however, his number was not connected. The Commission then attempted to contact the Mr Vercon’s Representative on their nominated telephone number, however, their number was also not connected.
Later that day, the Commission emailed correspondence to Mr Vercon’s nominated email address advising Mr Vercon that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Vercon to file any documents/evidence to support his claim that he had served the required minimum employment period. The correspondence also warned Mr Vercon that if the Commission did not hear from him within 14 days, the application may be dismissed without further notice.
As the required documentation was not received, on 11 October 2022 the Commission attempted to contact the Mr Vercon and the Mr Vercon’s Representative via their nominated telephone numbers however, both telephone numbers were not connected. The Commission emailed correspondence to Mr Vercon’s nominated email address advising that he did not meet the minimum employment period. The email advised that the matter would likely be dismissed if no documents were received by 13 October 2022 demonstrating that the minimum employment period had been met.
To date, Mr Vercon has not replied to the Commission’s correspondence.
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.
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.
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.
Having regard to the circumstances of this matter I am satisfied that as Mr Vercon 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
[1] PR746891
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