Pedr Finn v Uniting Church Homes T/A Juniper

[2018] FWC 4937

[2018] FWC 4937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Pedr Finn

v

Uniting Church Homes T/A Juniper

(U2018/7940)

Deputy President Binet PERTH, 23 AUGUST 2018

Application for an unfair dismissal remedy – minimum employment period not met – application dismissed.

1. On 2 August 2018, Mr Pedr Finn (Mr Finn) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Uniting Church Homes trading as Juniper (Juniper).

1. Mr Finn advised that he commenced employment with Juniper on 28 June 2018 and that he was notified of his dismissal on 11 July 2018. Mr Finn was contacted by the FWC on 2 August 2018 and affirmed in a telephone conversation that the dates of employment outlined in the Application were correct.

1. On 2 August 2018, correspondence was sent to Mr Finn 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 Finn to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his Application.

1. On 8 August 2018, Juniper, having been served with a copy of the Application by Mr Finn, filed a Form F3 asserting that Mr Finn commenced employment on 28 June 2018 and resigned from his employment on 11 July 2018. The Form F3 indicated that Juniper objected to the Application on the bases that Mr Finn had not been dismissed, and that Mr Finn did not meet the minimum employment period.

1. On 14 August 2018, Mr Finn advised the Commission that, having received legal advice, he wished to proceed with his Application notwithstanding the issues raised in relation to the minimum employment period.

1. 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.

1. 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.”

1. On 15 August 2018, my Chambers issued directions to the parties (Directions). The Directions required Mr Finn to file in the FWC and serve on Juniper by close of business Monday 20 August 2018 any evidence or documents to support a claim that Mr Finn served the minimum employment period with Juniper.

1. No correspondence of any kind was received from Mr Finn by this date.

1. In the circumstances of this matter, I am satisfied Mr Finn has not completed the required minimum employment period and that his Application has no reasonable prospects of success.

1. 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.”

1. Consequently, the Application is dismissed pursuant to section 587(1)(c) of the Act. An Order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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