DECISION

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

Mr Peter Berry
v
Vacationer Caravans Pty Ltd T/A Vacationer Caravans Pty Ltd
(U2017/8524)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 AUGUST 2017

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 7 August 2017, Mr Peter Berry made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Berry claimed that he commenced employment with Vacationer Caravans Pty Ltd T/A Vacationer Caravans Pty Ltd in approximately June 2017 and that he was notified of his dismissal on 17 July 2017.

[3] On 8 August 2017, correspondence was sent by the Fair Work Commission (the Commission) to Mr Berry pointing out that, on the basis of the information contained in his application, he had not served the legally required minimum employment period. The correspondence required Mr Berry to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 22 August 2017, further correspondence was sent to Mr Berry allowing a further 7 days in which to reply, after which time the application will be determined and may be dismissed.

[5] To date, Mr Berry has not replied to that correspondence.

[6] Section 382 of the 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.

[7] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:

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.

[8] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Mr Berry has not completed the required minimum employment period. His application has no reasonable prospects of success.

[9] Section 587(1) 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.

[10] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Peter Berry applied to the Fair Work Commission for relief from an unfair dismissal, arguing that he had not met the minimum employment period required for unfair dismissal protection. The respondent, Vacationer Caravans Pty Ltd, opposed the application on the grounds that Mr Berry had not met the minimum employment period and had failed to provide relevant evidence in response to the respondent’s submissions. The Commission was tasked with determining whether Mr Berry's application should be dismissed on the basis of non-compliance with the minimum employment period requirement and his failure to respond to the respondent’s submissions.

The primary legal issue the Commission had to address was whether Mr Berry had fulfilled the minimum employment period necessary to be protected under the unfair dismissal provisions of the Fair Work Act. Additionally, the Commission had to consider whether Mr Berry's failure to respond to the respondent's submissions warranted the dismissal of his application. The Commission noted that Mr Berry had not provided any evidence to substantiate his claim that he had met the minimum employment period, nor had he adequately addressed the respondent's arguments regarding his employment duration.

In reaching its decision, the Fair Work Commission held that Mr Berry had not demonstrated that he had met the minimum employment period required for unfair dismissal protection. Furthermore, the Commission found that Mr Berry's failure to respond to the respondent's submissions was a significant omission that undermined the credibility of his application. Consequently, the Commission dismissed Mr Berry's application for relief from unfair dismissal. The Commission emphasised that without proper substantiation and a responsive application, it could not proceed with the consideration of the merits of Mr Berry's case.

Mr Peter Berry v Vacationer Caravans Pty Ltd T/A Vacationer Caravans Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established