Nigel Miller v Clare Country Club

[2016] FWC 9027

[2016] FWC 9027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nigel Miller
v
Clare Country Club
(U2016/13961)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 19 DECEMBER 2016

Application for relief from unfair dismissal – minimum employment period not met – application dismissed.

[1] On 22 November 2016 Mr Nigel Miller made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Miller advised that he commenced employment with Clare Country Club on 1 July 2016 and that his dismissal took effect on 19 October 2016.

[3] On 22 November 2016, the Fair Work Commission (the Commission) unsuccessfully attempted to telephone Mr Miller in relation to the minimum employment period requirement.

[4] The Commission made a further attempt to telephone Mr Miller on 23 November 2016. Mr Miller answered the telephone call; however the telephone was then disconnected. The Commission attempted immediately to telephone Mr Miller back, twice, however an automated message was received notifying that the telephone was switched off or out of range.

[5] Correspondence was sent to Mr Miller on 23 November 2016 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 Miller to advise the Commission within 14 days whether he wished to proceed with his application.

[6] On 23 November 2016, Mr Miller telephoned the Commission Helpline and spoke to a Registry Officer. He became angry during the telephone call and requested to discuss the matter further with someone higher. On the same day, the State Manager telephoned Mr Miller back. The State Manager attempted to explain that the provisions of the FW Act require a minimum employment period to have been served, Mr Miller interrupted the State Manger and after using a number of expletives then terminated the telephone call.

[7] On 7 December 2016 further correspondence was sent to Mr Miller allowing a further 7 days in which to reply, after which time the application would be dismissed.

[8] To date, Mr Miller did not reply to that correspondence.

[9] 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.

[10] Section 383 of the FW 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.:

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

[12] Section 587(1) of the FW 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.”

[13] Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order (PR588614) to this effect will be issued shortly.

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