Scott Blake v Parkside Group timber Milling Nannup

[2020] FWC 6552

[2020] FWC 6552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Blake
v
Parkside Group timber Milling Nannup
(U2020/14947)

COMMISSIONER BISSETT MELBOURNE, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 17 November 2020, Mr Scott Blake 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).

[2] Mr Blake advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Parkside Group Timber Milling Nannup on 18 June 2020 and that his dismissal took effect on 5 November 2020.

[3] On 18 November 2020, the Commission attempted to contact Mr Blake on his nominated telephone number in relation to his application. A voicemail message was left advising Mr Blake that it did not appear that he had served the minimum employment period necessary to make an application.

[4] Later that day, the Commission emailed correspondence to Mr Blake’s nominated email address advising Mr Blake that, based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Blake to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Blake did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On the same day, the Applicant called the Commission’s helpline checking the status of his application. It was confirmed that the Applicant worked less than six months with the Respondent. The Applicant was advised that he had not served the minimum employment period and that the Applicant may wish to discontinue his application or if he wished to proceed, he must demonstrate that he had served the minimum employment period. The Applicant hung up the call before further information could be provided to him

[6] As the required documentation was not received, on 30 November 2020 the Commission attempted to contact Mr Blake on his nominated telephone number. However, Mr Blake could not be reached. A voicemail message was left requesting that he contact the Commission.

[7] To date, Mr Blake has not 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] In the circumstances of this matter, I am satisfied Mr Blake has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.

[11] 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 prospects of success.

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Blake has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect 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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