Mr Mark Hellewell v Life Without Barriers

[2014] FWC 207

[2014] FWC 207

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Mark Hellewell
v
Life Without Barriers
(U2013/12992)

COMMISSIONER CLOGHAN PERTH, 10 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 28 August 2013, Mr Mark Hellewell (Mr Hellewell or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Life Without Barriers (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 16 October 2013.

[4] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal because:

● he has not completed the minimum period of employment pursuant to s.382(a) of the FW Act.

[5] To assist in the jurisdictional objection of the Employer, I issued procedural directions on 22 October 2013 to facilitate the Employer making a submission on its jurisdictional objection and enabling the Applicant to respond. The Employer also had the ability to respond to the Applicant’s submission by 25 November 2013, but chose not to do so.

[6] After receiving and considering the submissions, I advised the parties by email on 11 December 2013 that I was satisfied that the Applicant was not protected from unfair dismissal because he had not completed the minimum period of employment. I adopted this course of action in view of my imminent departure on annual leave and to not leave the parties “up-in-the-air” until mid January 2014 at the earliest.

[7] These are the reasons for my decision as advised to the parties on 11 December 2013.

[8] On 22 January 2013, Mr Hellewell was offered the position of a Case Coordinator on a full-time basis from 29 January 2013 to 26 July 2013. From 27 July 2013 to 4 August 2013, the Applicant was not employed by the Employer.

[9] On 1 August 2013, Mr Hellewell was offered the position of a Support Worker on a casual basis commencing 5 August 2013. Mr Hellewell was “offered casual hours of work as required to suit the needs of the service”.

[10] On 14 August 2013, Mr Hellewell’s employment as a casual support worker was terminated with immediate effect.

[11] Mr Hellewell, in his submission, appears to concede that he had not met the minimum period of employment in the FW Act when he states:

“Whilst I reluctantly accept that Section 384 of the Fair Work Act precludes my being able to bring Life Without barriers to the table in light of my dismissal, it is my fervent hope that they, at least are pressed to provide some explanation as to the circumstances of my unexpected premature release...”

[12] While Mr Hellewell, in his submission, is clearly concerned with the manner in which his dismissal was effected, that is not the matter for my determination concerning the Employer’s jurisdictional objection.

[13] The FW Act, at subsection 382, requires Mr Hellewell to provide evidence that he was employed, among other criteria, for the minimum period of employment to be protected from unfair dismissal; he has not been able to do so.

[14] The evidence is that at the time of his dismissal, Mr Hellewell had been employed as a casual Support Worker from 5 August 2013 to 14 August 2013. Accordingly, Mr Hellewell has not met the minimum period of employment required in s.382 of the FW Act and his application must be dismissed. An order to this effect is issued with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 20 November 2013.

Respondent: 6 November 2013.

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