Richard Barnes v David Mendlawitz and Giles Becford
[2022] FWC 3354
•23 DECEMBER 2022
| [2022] FWC 3354 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Richard Barnes
v
David Mendlawitz And Giles Becford
(U2022/11513)
| COMMISSIONER BISSETT | MELBOURNE, 23 DECEMBER 2022 |
Application for an unfair dismissal remedy
On 5 December 2022 Mr Richard Barnes (the Applicant) 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 Barnes advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with David Mendlawitz And Giles Becford (the Respondent) in March 2022 and that he was notified of his dismissal in March 2022.
On 5 December 2022 the Commission contacted Mr Barnes on his nominated telephone number. During this telephone call Mr Barnes advised that he had previously lodged an application under s. 365 of the FW Act in relation to the same employer and dismissal. During the telephone call the Commission advised Mr Barnes that on the basis of the information provided in his Form F2, he had not served the minimum employment period. During this telephone call Mr Barnes confirmed that he worked for the employer in March 2022, but did not provide particular dates. Mr Barnes was informed that the minimum employment period is part of the eligibility requirements and not a matter of discretion. Mr Barnes advised the Commission that he wished to continue with his application regardless.
As Mr Barnes wished to continue with his application his matter was referred to me.
On 19 December 2022 my chambers sent correspondence to Mr Barnes’ nominated email address advising him that as the minimum employment period does not appear to have been met, the Commission is unable to hear his application. The correspondence also informed Mr Barnes that his application was also at risk of being dismissed as he had previously submitted an application under s. 365 of the FW Act in relation to the same dismissal, in which a certificate was granted. Mr Barnes was invited to provide submissions in relation to each of these matters.
On 19 December 2022 the Commission received a reply to its correspondence from Mr Barnes. In his submissions, Mr Barnes did not provide any further evidence that he was employed for a period greater than six months and acknowledged that he had made a previous application regarding the same circumstances.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.
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 725 of the FW Act provides as follows:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
Sections 727 and 729 of the FW Act set out that general protections applications and unfair dismissal applications are applications of the relevant kind for s. 725.
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.
I am satisfied that Mr Barnes has not completed the required minimum employment period under the FW Act, and that he has previously submitted an application in relation to the same dismissal. Accordingly, I am satisfied that the application has no reasonable prospect of success.
As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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