Mr Ryan Perriam v Café Bavaria T/A Café Bavaria

[2018] FWC 6855

[2018] FWC 6855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Ryan Perriam
v
Café Bavaria T/A Café Bavaria
(U2018/10392)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 NOVEMBER 2018

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

[1] On 9 October 2018, Mr Ryan Perriam made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Mr Perriam claimed in his application that he commenced employment with Café Bavaria T/A Café Bavaria on 25 August 2018 and that he was notified of his dismissal on 31 September 2018, with the dismissal taking effect on that day.

[3] On 9 October 2018, the Fair Work Commission (the Commission) attempted to contact Mr Perriam by telephone in regards to the legally required minimum employment period. Further, Mr Perriam stated in his application that his dismissal took effect on 31 September 2018, however there are only 30 days in September. The call was not answered and a message was left. The Applicant did not return this call.

[4] On 10 October 2018, the Commission again attempted to contact Mr Perriam by telephone. There was no answer and a voicemail message was left. The Applicant did not return this call.

[5] On 10 October 2018, correspondence was sent by the Commission to Mr Perriam pointing out that, on the basis of the information contained in the application, he had not served the legally required minimum employment period. The correspondence required Mr Perriam to advise the Commission within 14 days whether he wished to proceed with his application.

[6] On 24 October 2018, the Commission attempted a third time to contact Mr Perriam by telephone. This call was not answered and a voicemail message was left. The Applicant did not return this call.

[7] On 25 October 2018 further correspondence was sent to Mr Perriam allowing a further 7 days in which to reply, after which time the application would be determined and may be dismissed.

[8] On 7 November 2018, the Commission attempted to contact Mr Perriam by phone for a fourth time. This call was not answered and a voicemail message was left. The Applicant did not return this call.

[9] To date, Mr Perriam has not replied to any calls or correspondence from the Commission.

[10] Section 382 of the FW 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.

[11] 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.

[12] 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 Perriam has not completed the required minimum employment period. His application has no reasonable prospects of success.

[13] Section 587(1) of the FW 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.

[14] 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

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