DECISION

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

Mr Ronald James Emil Petersen
v
Parterri Investments Pty Ltd T/A Adelaide Refridgerated
(U2017/9271)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 22 SEPTEMBER 2017

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

[1] On 28 August 2017, Mr Ronald James Emil Petersen made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Petersen claimed that he commenced employment with Parterri Investments Pty Ltd T/A Adelaide Refridgerated on 9 April 2017 and that he was notified of his dismissal on 7 August 2017.

[3] On 28 August 2017, correspondence was sent by the Fair Work Commission (the Commission) to Mr Petersen 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 Petersen to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 12 September 2017, further correspondence was sent to Mr Petersen 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 Petersen 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 Petersen 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

Ronald James Emil Petersen sought relief from his dismissal by Parterri Investments Pty Ltd T/A Adelaide Refridgerated, claiming it was unfair. The court was required to determine whether the dismissal was unfair, considering the applicant had not met the minimum employment period of six months. The case also required consideration of whether the applicant had responded to the respondent's submissions in a timely and appropriate manner.

The court found that the applicant had not met the minimum employment period required for unfair dismissal claims. This was a crucial factor in determining the application's validity. Furthermore, the applicant had failed to respond to the respondent's submissions in a timely and appropriate manner, which impacted the court's ability to fairly assess the merits of the application. The court concluded that due to the lack of response, the application could not be considered on its merits.

As a result, the court dismissed the application for relief from unfair dismissal. The applicant's failure to meet the minimum employment period and respond to the respondent's submissions were key factors in this decision. The court found that the application did not meet the necessary criteria for relief from dismissal. Therefore, the applicant's application was dismissed.

Mr Ronald James Emil Petersen v Parterri Investments Pty Ltd T/A Adelaide Refridgerated

DECISION

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Legal Principle Established