Nicholas Churchward v Steel Force Holdings Pty Ltd

[2016] FWC 7075

[2016] FWC 7075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Churchward
v
Steel Force Holdings Pty Ltd
(U2016/10945)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 2 September 2016, Mr Nicholas Churchward made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Churchward advised that he commenced employment with Steel Force Holdings Pty Ltd on 20 June 2016 and that his dismissal took effect on 12 August 2016.

[3] On 5 September 2016, the Commission attempted to contact Mr Churchward and a message was left on his voicemail to contact the Commission.

[4] On 5 September 2016, correspondence was sent to Mr Churchward 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 Churchward to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 19 September 2016, correspondence was sent to Mr Churchward pointing out that on the basis of the information contained in the application, his application did not appear to be valid. The correspondence advised Mr Churchward that if he did not provide a response within 7 days, his application would be determined on the material before the Commission.

[6] On 26 September 2016, the Commission attempted to contact Mr Churchward and a message was left on his voicemail to contact the Commission.

[7] Mr Churchward did not reply to any correspondence.

[8] 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.

[9] 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.”

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

[11] 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.”

[12] 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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