Patrick Horning v Wohlers Furniture and Homeware

[2016] FWC 678

[2016] FWC 678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Horning
v
Wohlers Furniture and Homeware
(U2016/49)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 5 January 2016, Mr Patrick Horning made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Horning advised that he commenced employment with Wohlers Furniture and Homeware on 22 June 2015 and that his dismissal took effect on 17 December 2015.

[3] On 7 January 2016, the Fair Work Commission telephoned Mr Horning and advised that correspondence would be sent to him as his application indicates that he may not have been employed for the minimum employment period.

[4] On 7 January 2016, correspondence was sent to Mr Horning 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 Horning to advise the Commission within 14 days whether he wished to proceed with his application.

[5] Mr Horning did not reply to that correspondence.

[6] On 21 January 2016, further correspondence was sent to Mr Horning advising that unless contact with the Commission was made within seven days, his application would be determined on the material currently before the Commission.

[7] On 24 January 2016, Ms Michelle Horning wrote to the Commission attaching the letter of employment and the first and final payslips that Mr Horning received. Ms Horning submitted that Mr Horning commenced his employment on 22 June 2015 and ceased his employment on 23 December 2015. The documents provided do not evidence that Mr Horning served the minimum employment period.

[8] On 25 January 2016, a Commission staff member advised Ms Michelle Horning that the matter would be referred to conciliation, however this was incorrect advice.

[9] On 2 February 2016, the Commission wrote to Mr Horning explaining that on the information provided, he was given notice of dismissal on 17 December 2015 and given this information I intended to dismiss the application without conducting a hearing/conference. Mr Horning was asked to provide any evidence that he was not provided notice of termination of employment on 17 December 2015, by close of business Tuesday 9 February 2016.

[10] Mr Horning did not provide a response to the Commission.

[11] 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.

[12] 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.

[13] The relevant date in this matter is 17 December 2015, which was when Mr Horning was given notice of the dismissal. As Mr Horning commenced employment on 22 June 2015 the six month period therefore ended at midnight on 21 December 2015. As Mr Horning was not employed at that time, I am satisfied Mr Horning has not completed the required minimum employment period and his application has no reasonable prospects of success.

[14] 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.

[15] 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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