Nat Loadsman v Australian Workplace Training Pty Ltd

[2016] FWC 1330

[2016] FWC 1330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nat Loadsman
v
Australian Workplace Training Pty Ltd
(U2016/4061)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2016

Application for relief from unfair dismissal.

[1] On 25 January 2016, Mr Nat Loadsman made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Loadsman advised that he commenced employment with Australian Workplace Training Pty Ltd on 5 November 2015 and that his dismissal took effect on 25 January 2016.

[3] On 27 January 2016, a telephone call was made to Mr Loadsman and he was advised that on the basis of the information contained in the application, he had not served the minimum employment period and that he would receive correspondence from the Fair Work Commission to this effect. Correspondence was sent to Mr Loadsman pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Loadsman to advise the Fair Work Commission within fourteen days whether he wished to proceed with his application.

[4] On 8 February 2016, a telephone call was made to Mr Loadsman to confirm whether he wished to pursue his application, the call rang out and a voicemail was unable to be left.

[5] On 10 February 2016, a telephone call was made to Mr Loadsman to confirm whether he wished to pursue his application. Mr Loadsman said that he would complete the notice of discontinuance and email it to the Commission.

[6] On 16 February 2016, correspondence was sent to Mr Loadsman stating that he needed to advise whether he intended to proceed with his application or to file a notice of discontinuance with the Commission. Further, it stated that unless advice was received by the Commission within fourteen days that he wished to proceed with his application, his application would be dismissed.

[7] On 22 February 2016, correspondence was sent to Mr Loadsman advising that his application would be dismissed.

[8] On 26 February 2016, a telephone call was made to Mr Loadsman and a message was left requesting that he contact the Commission.

[9] Mr Loadsman did not contact the Commission.

[10] 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.

[11] Section 383 of the Act sets out 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.

[12] In the circumstances of this matter, I am satisfied Mr Loadsman has not completed the required minimum employment period.

[13] 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.

[14] As Mr Loadsman has not completed the minimum period of employment his application has no prospects of success. Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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