Nathan Ahern v Meatball and Wine Bar

[2014] FWC 5258

[2014] FWC 5258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Ahern
v
Meatball and Wine Bar
(U2014/7940)

COMMISSIONER WILSON MELBOURNE, 4 AUGUST 2014

Application for relief from unfair dismissal.

[1] On 18 June 2014, Mr Nathan Ahern made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Ahern advised that he commenced employment with Meatball and Wine Bar on 6 January 2014 and that he was notified of his dismissal on 9 June 2014.

[3] On 26 June 2014, correspondence was sent to Mr Ahern 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 Ahern to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 11 July 2014, further correspondence was sent to Mr Ahern allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] On 1 August 2014, the Commission attempted to contact Mr Ahern by telephone without success.

[6] To date, Mr Ahern has not replied to any correspondence or made contact with the Commission.

[7] 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.

[8] Section 383 of the Act sets out the 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.”

[9] In the circumstances of this matter, I am satisfied Mr Ahern has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.”

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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