Ryan Donnelly v Hawking Electrical Energy Solutions Pty Ltd

[2020] FWC 1985

[2020] FWC 1985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Donnelly
v
Hawking Electrical Energy Solutions Pty Ltd
(U2020/1879)

COMMISSIONER BISSETT MELBOURNE, 16 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 19 February 2020 Mr Ryan Donnelly made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Donnelly advised on his Form F2 Unfair Dismissal Application that he commenced employment with Hawking Electrical Energy Solutions Pty Ltd on 16 December 2019 and that he was notified of his dismissal on 28 January 2020.

[3] On 20 February 2020 the Commission emailed correspondence to Mr Donnelly and his representative advising that on the basis of the information contained in his Form F2, he had not served the minimum employment period. The correspondence required Mr Donnelly to file any documents/evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application. No response was received.

[4] Also on that day the Commission attempted to contact Mr Donnelly on his nominated telephone number. A voicemail message was left requesting a return call in order to clarify the information provided on the Form F2.

[5] On 27 February 2020 the Commission emailed correspondence to Mr Donnelly and his representative advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s correspondence, his application would be determined based on the material before the Commission.

[6] Also on that day the Commission sent an SMS message to the nominated telephone numbers of Mr Donnelly and his representative advising that there was a problem with his application and to contact the Commission.

[7] To date, neither Mr Donnelly nor his representative has replied to the Commission’s 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 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.

[10] Section 587(1) of the FW Act states:

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 that Mr Donnelly has not completed the required minimum employment period.

[12] As the minimum employment period has not been met, the application has no reasonable prospects of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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