Nathan Arnold v Royal Automobile Club of Victoria (RACV) Ltd
[2022] FWC 642
| [2022] FWC 642 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nathan Arnold
v
Royal Automobile Club of Victoria (RACV) Ltd
(U2022/2200)
| COMMISSIONER BISSETT | MELBOURNE, 1 april 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 20 February 2022 Mr Nathan Arnold made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
Mr Arnold advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Royal Automobile Club of Victoria (RACV) Ltd on 9 August 2021 and that his dismissal took effect on 17 January 2022.
On 22 February 2022 the Commission attempted to contact Mr Arnold’s Representative, his father Mr Rob Arnold (Father) via telephone. There was no answer, and a voicemail was left requesting he contact the Commission.
Later that day, the Commission emailed correspondence to both Mr Arnold and his father’s nominated email addresses advising that based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Arnold to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Arnold did not contact the Commission within 14 days, the application may be dismissed without further notice.
Later that day, Mr Rob Arnold contacted the Commission’s Helpline. The Commission explained that Nathan Arnold may not be eligible for unfair dismissal as it appeared he had not served the minimum employment period. Mr Arnold advised that Nathan would seek legal advice.
As the required documentation was not received, on 9 March 2022 the Commission attempted to contact Mr Rob Arnold via his nominated telephone number. However, he could not be reached. A voicemail message was left requesting Mr Arnold contact the Commission, advising the matter may be dismissed by a Member of the Commission.
On 15 March 2022 the Commission received email correspondence from Mr Rob Arnold advising the applicant wished to maintain the unfair dismissal application, and that they were awaiting a call back from JobWatch.
On 18 March 2022 the application was referred to me. My chambers wrote to Mr Rob Arnold and Mr Nathan Arnold in the following terms:
I refer to the application for unfair dismissal lodged on behalf of Nathan Arnold.
As advised in previous correspondence from the Commission it appears, on the basis of the material filed, that Nathan has not served the minimum employment period of 6 months. Unless he has served at least 6 months with RACV the Commission does not have the power to hear his application for unfair dismissal.
In your last contact with the Commission you indicated that you were awaiting advice from JobWatch but you have not contacted us since to advise the outcome of that consultation.
If Nathan has worked for RACV for more than 6 months could you please provide documentation of this (for example payslips, a contract of employment or the like) that demonstrates this.
The Commission requires this evidence by 4.00pm Thursday 31 March 2022. If the required information is not received by that date the application will be dismissed without further correspondence with you.
To date, Mr Arnold has not responded to the Commission’s request for more information regarding the minimum employment period.
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.
Section 383 of the FW Act sets out the minimum employment period as follows:
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.
Section 587(1) of the FW Act provides that:
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 prospect of success.
Having regard to the circumstances of this matter I am satisfied that as Mr Arnold has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order[1] to this effect will be issued with this decision.
COMMISSIONER
[1] PR739619.
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