Richard Kemp v The Jewellery Group T/A Zamel's

[2016] FWC 9144

[2016] FWC 9144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Kemp
v
The Jewellery Group T/A Zamel’s
(U2016/14070)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 DECEMBER 2016

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

[1] On 24 November 2016, Mr Richard Kemp made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Kemp advised that he commenced employment with The Jewellery Group T/A Zamel's on 11 October 2016 and that his dismissal took effect on 17 November 2016.

[3] On 24 November 2016, correspondence was sent to Mr Kemp 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 Kemp to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 8 December 2016, a voicemail message was left on Mr Kemp’s mobile phone asking him to contact the Commission to advise if he wished to pursue or discontinue his application.

[5] On 9 December 2016, further correspondence was sent to Mr Kemp allowing a further 7 days in which to reply, after which time the application may be dismissed.

[6] On 16 December 2016, a final attempt was made to contact Mr Kemp by telephone. Another voicemail message was left advising him that if he did not make contact with the Commission by close of business 16 December 2016, a decision would be made to close his application.

[7] Mr Kemp has not replied to that correspondence.

[8] 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.

[9] 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.”

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

[11] 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.”

[12] Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order (PR588823) to this effect will be issued shortly.

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