Rodney Dimsey v Campaspe Shire

[2016] FWC 1767

[2016] FWC 1767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Dimsey
v
Campaspe Shire
(U2016/472)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MARCH 2016

Application for relief from unfair dismissal.

[1] On 5 February 2016, Mr Rodney Dimsey made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dimsey advised that he commenced employment with Campaspe Shire on 26 October 2015 and that his dismissal took effect on 2 February 2016.

[3] On 5 February 2016, correspondence was sent to Mr Dimsey 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 Dimsey to advise the Fair Work Commission within 14 days whether he wished to proceed with his application. On the same date, the Commission attempted to contact the applicant without success.

[4] On 8 February 2016, Mr Dimsey contacted the Commission and he was advised that based on the information contained in the application, he had not served the minimum employment period. The Commission requested Mr Dimsey to advise the Commission whether he wished to proceed with his application. Mr Dimsey advised he will seek legal advice and confirm to the Commission which option he will take.

[5] On 25 February 2016, further correspondence was sent to Mr Dimsey allowing a further seven days in which to reply, after which time the application would be dismissed.

[6] On 8 March 2016, the Commission attempted to contact Mr Dimsey, again without success.

[7] To date, Mr Dimsey did not reply to that correspondence.

[8] 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.

[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 Dimsey has not completed the required minimum employment period and his/ application has no reasonable prospects of success.

[11] 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.

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

DEPUTY PRESIDENT

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