Samuel John Reynolds v Keen Boys Transport Pty Ltd

[2022] FWC 303

[2022] FWC 303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samuel John Reynolds
v

Keen Boys Transport PTY LTD

(U2022/547)

DEPUTY PRESIDENT MANSINI MELBOURNE, 18 FEBRUARY 2022

Application for an unfair dismissal remedy  – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 7 January 2022, Mr Samuel John Reynolds made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Mr Reynolds advised in the application that he began working for the Respondent on 23 November 2021 and was notified of his dismissal 9 days later, on 2 December 2021.

1. On 10 January 2022, the Commission attempted to contact Mr Reynolds on his nominated telephone number to confirm his dates of employment. A voicemail message was left requesting Mr Reynolds contact the Commission.

1. Subsequently on 10 January 2022, the Commission sent correspondence to Mr Reynolds’s nominated email address advising that on the basis of the information provided in the application, it appeared that he had not served the “minimum employment period” for the purposes of the Act. The correspondence outlined the nature of the apparent jurisdictional issue and provided sources of further information. Further, Mr Reynolds was required to lodged any documents that show that he worked the “minimum employment period” by 24 January 2022. That correspondence also warned that if the Commission did not hear from Mr Reynolds by this time, his application may be dismissed without further notice.

1. As at 25 January 2022, there was no response or documentation received from Mr Reynolds. As such, on 25 January 2022, the Commission attempted to contact Mr Reynolds on his nominated telephone number but he could not be reached and a voicemail message was left requesting that Mr Reynolds contact the Commission to discuss his application.

1. At the time of this decision, Mr Reynolds has not replied to the Commission’s correspondence or otherwise communicated with the Commission about his application.

1. 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”.

1. Section 383 of the Act defines 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.

1. Section 587(1) of the FW Act provides that:

   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 prospect of success.

2. On the materials before the Commission, Mr Reynolds has not completed the “minimum employment period” (whether employed by a small business employer or otherwise) within the meaning of s.383 of the Act and is therefore not a person protected from unfair dismissal pursuant to s.382. Further, I am satisfied that Mr Reynolds has been afforded sufficient opportunity to respond to the jurisdictional issue and has declined to do so. Indeed, since the application was made, Mr Reynolds has made no attempt to purse this application at all. Having regard to the circumstances of this matter, I am satisfied that this application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR738356.

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