Mr Glen Barber v Swifts Sports Club

[2013] FWC 8487

[2013] FWC 8487

FAIR WORK COMMISSION

DECISION

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

Mr Glen Barber
v
Swifts Sports Club
(U2013/12926)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 OCTOBER 2013

Application for unfair dismissal remedy - Jurisdiction - Minimum employment period.

[1] On 27 August 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Glen Barber.

[2] The Form 2 - Application for Relief from Unfair Dismissal filed by Mr Barber states that he commenced employment with Swifts Sports Club on 5 July 2013, and that his dismissal took effect on 10 August 2013.

[3] On 28 August 2013, correspondence was sent to Mr Barber by a Fair Work Commission Conciliator pointing out that on the basis of the information contained in the Form 2, Mr Barber had not served the minimum employment period as required under s.383(a) of the Act. The correspondence required Mr Barber to advise the Commission within 14 days whether he wished to proceed with his Application.

[4] On 18 September 2013, further correspondence was sent to Mr Barber by the Commission’s Unfair Dismissal Case Management Team, pointing out the same issue and requiring him to advise the Commission within 14 days whether he wished to proceed with his Application.

[5] On 19 September 2013, correspondence was received from Mr Barber in the following terms:

“... I still wantto go forward with this as I am making a stand over it sorry for late reply but was thinking about it for a while”

[6] On 20 September 2013 a File Note made by a member of the Unfair Dismissal Case Management Team was placed on the file in the following terms:

“TC [telephone conversation] with A [Applicant] regarding his wish to pursue application. I advised him of process, confirmed if not employed for 6 months may not be covered by unfair dismissal and could be subject to a costs application. I explained the process and that any hearing might not cover the grounds for his dismissal but only focus on the length of time he was employed, to which he explained he understood and wanted to proceed regardless ...”

[7] The application was allocated to the Commission as currently constituted and was listed for Mention/Directions, by Telephone, on 28 October 2013.

[8] On 21 October 2013 the Applicant spoke with my Associate, who confirmed the Mention/Directions Conference would deal with the issue of whether the Applicant had served the minimum employment period. It was also pointed out to the Applicant that it was likely that the application would be dismissed if he had not served the minimum employment period.

[9] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[10] Section 383 of the Act provides:

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] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] At the Conference/Mention heard on 28 October 2013 Mr Barber confirmed that the information set out in his application is correct and that his period of employment was 5 July to 13 August 2013. Swifts Sports Club confirmed that it is not a small business employer. The minimum employment period is six months and Mr Barber has not served that period. Mr Barber is not a person protected from unfair dismissal and cannot make an application under s.394 of the Act.

[13] I am satisfied that Mr Barber’s application has no reasonable prospects of success. Consequently, I have decided to exercise the discretion to dismiss the application pursuant to s.587 of the Act. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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