Roy Leslie v VM Drilling Pty Ltd

[2016] FWC 9152

[2016] FWC 9152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roy Leslie
v
VM Drilling Pty Ltd
(U2016/13763)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 DECEMBER 2016

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

[1] On 17 November 2016, Mr Roy Leslie made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Leslie advised that he commenced employment with VM Drilling Pty Ltd on 26 June 2016 and that his dismissal took effect on 11 November 2016.

[3] On 17 November 2016, correspondence was sent to Mr Leslie 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 Leslie to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 5 December 2016, Mr Leslie was contacted by telephone. His representative, Ms Sarah Leslie, answered the call and advised that the applicant will be speaking with his lawyer about this matter during the week. The applicant and his representative were asked to contact the Commission before the end of the week, once they had sought legal advice.

[5] On 9 December 2016, a further telephone call was made to Mr Leslie. Mr Leslie advised he was still unsure whether he wanted to pursue or discontinue the application. It was made clear to him that he would need to make his decision as the time had elapsed since he was directed to notify the Commission of his intentions. Mr Leslie was provided until close of business 9 December 2016 to make his decision.

[6] On 12 December 2016, further correspondence was sent to Mr Leslie allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] Mr Leslie 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 FW 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 Leslie 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 (PR588842) to this effect will be issued shortly.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR588841>