Robert Pfeiffer v Bridgeport Tyres

[2013] FWC 3962

[2013] FWC 3962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Pfeiffer
v
Bridgeport Tyres
(U2013/5461)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2013

Jurisdictional Objection - Application dismissed -Minimum Employment Period not met.

[1] On 7 January 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Robert Pfeiffer (the Applicant). The Applicant’s employment ceased with Bridgeport Tyres (the Respondent) on 28 December 2012.

[2] Conciliation was listed for 13 February 2013; however the Respondent declined to participate. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, 8 April 2013. The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Jones on 18 April 2013.

[4] At the hearing, Commissioner Jones decided to amend the directions for the Applicant to file material in respect of his application by close of business, 22 May 2013.

[5] The Applicant failed to comply with this direction. The matter was listed for a further non compliance hearing before Commissioner Jones on 3 May 2013.

[6] The Applicant failed to attend the non compliance hearing. In the absence of the Applicant, Commissioner Jones decided to provide a further opportunity to the Applicant to file material in respect to his application by 10 May 2013.

[7] On 16 May 2013, the Fair Work Commission (the Commission) sent correspondence to the Applicant which outlined the issue of his failure to comply with directions. The correspondence noted that if submissions, witness statements and documentary material were not filed in the Commission by close of business, 22 May 2013, the Applicant’s application will be dismissed.

[8] On 20 May 2013, the Respondent sent correspondence to the Commission and filed a Form F4 - Objecting to the Application. The correspondence advised that the Applicant had not completed the minimum employment period. The Respondent noted that the Applicant commenced employment on 6 July 2012 and ceased employment on 28 December 2012.

[9] This is consistent with the information provided by the Applicant in his application filed on 7 January 2013.

[10] Section 383 of the Act provides 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.

[11] Following the receipt of the Respondent’s correspondence and objection dated 20 May 2013, amended directions were issued to both the Applicant and the Respondent in respect of the jurisdictional issue, that is, whether the Applicant served the minimum employment period as required under s.383 of the Act.

[12] The Applicant was directed to file submissions in respect of the jurisdictional issue by close of business, 14 June 2013. The Applicant failed to comply with this direction and has not made any form of contact with the Commission.

[13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. Section 397 of the Act requires the Commission to conduct a hearing if there are contested facts. As these facts are not contested I determined to deal with the matter on the papers.

[14] Section 382 of the Act provides as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[15] I find on the material before the Commission that the Applicant had not served the minimum employment period.

[16] As the Applicant was not protected from unfair dismissal the application is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538031>