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

[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.

Printed by authority of the Commonwealth Government Printer

The court was called upon to consider an application for relief from unfair dismissal made by Richard Kemp against The Jewellery Group T/A Zamel's. The application arose from an employment relationship where Kemp alleged that he was unfairly dismissed by the respondent. The matter was heard in the Fair Work Commission, where the primary judge had to determine whether the application should proceed.

The legal issues at hand involved the interpretation of the Fair Work Act 2009, specifically the provisions concerning the minimum employment period required for an unfair dismissal claim. The court needed to assess whether Kemp had met the criteria for the minimum employment period, as stipulated in section 383 of the Act. This was crucial to determine the admissibility of the application.

In delivering the decision, the court found that Kemp had not satisfied the minimum employment period requirement. The evidence presented did not establish that Kemp had been employed by The Jewellery Group for a sufficient duration to be eligible for relief from unfair dismissal. Consequently, the court dismissed the application on the grounds that the statutory minimum employment period had not been met. The judge's reasoning hinged on the interpretation of the legislative provisions and the factual evidence provided.

The court's final orders were that the application for relief from unfair dismissal was dismissed, and no further action would be taken regarding the application. The decision was based on the clear statutory requirement that was not met by the applicant.

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

DECISION

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