Mr Luke Brady v Mercer (Australia) Pty Ltd

[2024] FWC 3395

[2024] FWC 3395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Luke Brady
v

Mercer (Australia) Pty Ltd

(U2024/13231)

DEPUTY PRESIDENT MASSON MELBOURNE, 5 DECEMBER 2024

Application for an unfair dismissal remedy – jurisdictional issue – whether minimum employment period met – minimum employment period of six months not met – application dismissed.

Introduction

1. On 4 November 2024, Mr Luke Brady (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment with Mercer (Australia) Pty Ltd (the Respondent) on 23 May 2023 was unfair. The Applicant seeks an order for compensation.

1. On review of the application, it is apparent that the application was filed outside of the statutory 21-day time period and that the Applicant had also failed to meet the minimum employment period of six months per s 383(a) of the Act and was therefore not a person protected from unfair dismissal in accordance with s 382 of the Act. The matter was listed for Mention on 2 December 2024 to obtain more information on both jurisdictional matters. The Mention proceeded and was attended by a representative of the Respondent while the Applicant failed to attend.

1. Immediately following conclusion of the Mention, the Respondent provided copies of the Applicant’s Contract of Employment dated 23 January 2023 and Letter of Termination dated 23 May 2023. These documents confirmed that the Applicant commenced employment with the Respondent on 27 February 2023 and ceased employment on 18 May 2023, meaning that the Applicant was employed for a period of less than the minimum employment period of six months.

1. Correspondence was then sent to the Applicant by my Chambers on 2 December 2024 advising that, as the Applicant had not met the minimum employment period, his application could not proceed. The Applicant was also put on notice that in these circumstances, I was considering the dismissal of his application pursuant to s 587 of the Act. He was invited to file submissions and material by 5pm on Wednesday 4 December 2024 on why his application should not be dismissed. The Applicant was specifically requested to address the minimum employment period issue. Copies of his Contract of Employment and Letter of Termination were also sent to the Applicant. No response was received from the Applicant.

1. Turning now to whether the application should be dismissed, the relevant section of the Act provides as follows;

“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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.”

1. The Applicant’s Contract of Employment and Letter of Termination establish that the Applicant was employed for a period of less than six months. As such, he has failed to meet the minimum employment period and is therefore not a person protected from unfair dismissal. In these circumstances I have determined to exercise my discretion pursuant to s 587(1)(c) of the Act to dismiss the application on the basis that the application has no reasonable prospects of success. In doing so I have acted on my own initiative as I am permitted to under s 587(3)(a) of the Act.

Conclusion

1. For the reasons outlined above, I am satisfied that the application has no reasonable prospects of success as the Applicant has not met the minimum employment period. In the circumstances, I have decided to dismiss the application pursuant to s 587(1)(c) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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