Mr Xavier Leck v Perisher Blue Pty Limited - [2024] FWC 2817

[2024] FWC 2817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Xavier Leck
v

Perisher Blue Pty Limited

(U2024/7860)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 8 July 2024 Mr Xavier Leck made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

For the reasons that follow I am satisfied that Mr Leck’s application has no reasonable prospects of success and should be dismissed.

Mr Leck advised in the Form F2 Unfair Dismissal Application that he commenced employment with Perisher Blue Pty Limited on 3 June 2024 and that his dismissal took effect on 8 July 2024. On the information provided by Mr Leck, he worked for Perisher Blue Pty Limited for 1 month and 5 days.

Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

“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.”

In Mr Leck’s case it does not matter whether Perisher Blue Pty Limited is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

Commission staff have tried to contact Mr Leck on the following dates:

·   11 July 2024 by letter and SMS;
·   31 July 2024 by telephone; and
·   22 August 2024 by telephone.

Commission staff sought further information from Mr Leck about whether he had served the minimum employment period.

Mr Leck has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make the application.

To date Mr Leck has not provided any further information that supports his eligibility to make the application.

Section 587

The relevant provisions in s.587 of the Act are 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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Xavier Leck v Perisher Blue Pty Limited

Details

AGLC: Mr Xavier Leck v Perisher Blue Pty Limited [2024] FWC 2817
Case: [2024] FWC 2817
Decision Date: 9 OCTOBER 2024

CaseChat Overview and Summary

Mr Xavier Leck applied to the Fair Work Commission for relief from unfair dismissal by Perisher Blue Pty Limited. The application was made under section 394 of the Fair Work Act 2009. The Commission was required to determine whether Mr Leck's application had any reasonable prospects of success. In particular, it needed to be established whether Mr Leck had served the minimum employment period required by the Act before his dismissal, and whether his application had reasonable prospects of success if the minimum period had been met.

Mr Leck's application was made on 8 July 2024, and the Form F2 application indicated that he had been employed for only 1 month and 5 days. This was well below the minimum employment period of 6 months required for a person to make an unfair dismissal claim under section 382 of the Act. Mr Leck was notified of the likely consequences of his failure to provide evidence of the minimum employment period. He was given multiple opportunities to provide further information but did not respond. The Commission's staff had also attempted to contact Mr Leck on several occasions to obtain further information. Mr Leck's application was considered in light of section 587 of the Act, which permits the dismissal of an application if it has no reasonable prospects of success. The Deputy President was satisfied that Mr Leck's application had no reasonable prospects of success because it was unlikely he had met the minimum employment period, and therefore dismissed the application on the Commission's own initiative.

Orders