Roy Henderson v Sunrise Way Therapeutic Community

[2017] FWC 1341

[2017] FWC 1341

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roy Henderson
v
Sunrise Way Therapeutic Community
(U2016/14636)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 8 December 2016, Mr Roy Henderson (the Applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 13 January 2017, Sunrise Way Therapeutic Community (the Respondent) filed its response indicating it objected to the Application on the ground that the Applicant’s employment does not meet the minimum employment period. The Respondent further requested that the matter not proceed to conciliation on the basis of its objection.

[3] Correspondence was sent by the Commission to the Applicant requesting information in relation to the jurisdictional objection on the basis that the information set out in his Form F2 Application indicated that he may not be a person protected from unfair dismissal as set out in s. 382 of the Act. The Applicant’s response did not address the relevant issues and the matter was referred to me for jurisdictional hearing.

[4] A Notice of Listing was sent to parties on 28 February 2017 indicating the matter had been listed for Jurisdictional Hearing on 7 March 2017.

[5] During the Hearing on 7 March 2017 the Respondent’s paid agent sought permission to appear pursuant to s. 596 of the Act. I refused permission on the basis that the issue presently before me was not complex in nature; the CEO of the Respondent was in attendance and appeared sufficiently capable of dealing with the issue; and an issue of fairness would arise if the Respondent was granted permission to be represented as the Applicant was unrepresented.

[6] The Applicant did not dispute that he commenced employment with the Respondent on 30 November 2015, and that his dismissal took effect on 17 November 2016. Furthermore, the Applicant did not dispute that at the time of his dismissal the Respondent employed fewer than 15 employees.

[7] 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.

[8] The minimum employment period is set out in s.383 of the Act 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.”

[9] Section 23(1) of the Act provides than an employer will be a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

[10] 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.”

[11] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act and an Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr R. Henderson appearing on his own behalf.

Ms W. Agar on behalf of the Respondent.

Hearing details:

Brisbane.

7 March.

2017.

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