Sean Brady v Pembroke Trading Pty Ltd

[2019] FWC 7183

[2019] FWC 7183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Brady
v
Pembroke Trading Pty Ltd
(U2019/10111)

COMMISSIONER BISSETT MELBOURNE, 17 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 10 September 2019, Mr Sean Brady made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Brady advised that he commenced employment with Pembroke Trading Pty Ltd on 7 January 2019 and that his dismissal took effect on 5 July 2019.

[3] 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.

[4] 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.

[5] On 11 September 2019, the Fair Work Commission (Commission) attempted to call Mr Brady to discuss his application but was unsuccessful, and was unable to leave a voice message. That same day the Commission sent correspondence by email to Mr Brady advising that, on the basis of the information contained in his application, he had not been employed for the minimum employment period required under the Fair Work Act 2009 (FW Act). The correspondence required Mr Brady to file in the Commission within 14 days any documents/evidence to support his claim that he has served the minimum employment period. If he did not contact the Commission within 14 days, Mr Brady was advised this his application may be dismissed without further notice.

[6] On 30 September the Commission attempted to call Mr Brady in relation to the correspondence sent to him on 11 September 2019 but was unsuccessful. A voice message was left for Mr Brady to contact the Commission in regard to his application. Correspondence was then emailed to Mr Brady the same day, advising that unless he contacts the Commission within 7 days and provides an acceptable explanation of why he did not respond to the direction contained in the letter of 11 September 2019, his application will be determined on the material currently before the Commission without further reference to him

[7] No response has been received from Mr Brady.

[8] 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.

[9] Having regard to the circumstances of this matter, I am satisfied that as Mr Brady has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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