Nick Davies v Dynamic Hydro Excavations Pty Ltd Summary

[2023] FWC 1855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nick Davies
v

Dynamic Hydro Excavations Pty Ltd

(U2023/6015)

COMMISSIONER BISSETT

MELBOURNE, 1 AUGUST 2023

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.

On 4 July 2023 Mr Nick Davies 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 Davies advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Dynamic Hydro Excavations Pty Ltd on 5 June 2023 and that his dismissal took effect on 30 June 2023.

On 6 July 2023, the Commission emailed correspondence to Mr Davies’ nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Davies to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

On 19 July 2023, the Commission attempted to contact Mr Davies on his nominated telephone number. However, Mr Davies could not be reached. A voicemail message was left advising that as the period of his employment was for less than 6 months, his employment did not meet the necessary minimum employment period.

As the required documentation was not received, the Commission attempted to contact Mr Davies again on his nominated telephone number on 21 July 2023. However, Mr Davies could not be reached. A voicemail message was left advising that as the period of his employment was for less than 6 months, his employment did not meet the necessary minimum employment period.

To date Mr Davies has not replied to the Commission’s correspondence.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Davies has not completed the required 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 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 prospect of success.

As Mr Davies has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

In the matter of Nick Davies v Dynamic Hydro Excavations Pty Ltd, the Fair Work Commission (FWC) was called upon to determine whether Mr. Davies was entitled to a remedy for unfair dismissal. Mr. Davies, who had been employed by Dynamic Hydro Excavations Pty Ltd from 5 June 2023 until his dismissal on 30 June 2023, filed an application under section 394 of the Fair Work Act 2009 (FW Act) for unfair dismissal. The primary issue before the Commission was whether Mr. Davies had completed the required minimum employment period to be eligible for protection against unfair dismissal.

The FWC examined whether Mr. Davies had served the minimum employment period as stipulated under section 383 of the FW Act. Given that Dynamic Hydro Excavations Pty Ltd was not a small business employer, the minimum employment period was six months. Mr. Davies’ employment duration was less than six months, thus he had not completed the requisite period. The Commission also noted that Mr. Davies had failed to respond to multiple attempts by the FWC to contact him for further evidence or clarification. Consequently, the FWC concluded that Mr. Davies’ application had no reasonable prospect of success, leading to the dismissal of the application under section 587(1)(c) of the FW Act.

The Fair Work Commission dismissed Mr. Davies' application for unfair dismissal on the basis that he had not completed the required minimum employment period of six months. The FWC found that Mr. Davies’ employment did not meet the statutory criteria for protection against unfair dismissal. Furthermore, the Commission highlighted that Mr. Davies had not engaged with attempts to obtain further information or evidence to support his claim, which further supported the conclusion that the application was unlikely to succeed. Consequently, the application was dismissed without further notice, and Mr. Davies was not entitled to a remedy for unfair dismissal.

Nick Davies v Dynamic Hydro Excavations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established