Sean Forbes v Livingstone International T/A Livingstone International

[2019] FWC 2483

[2019] FWC 2483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Forbes
v
Livingstone International T/A Livingstone International
(U2019/1941)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 23 February 2019, Mr Sean Forbes made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Forbes advised that he commenced employment with Livingstone International on 19 February 2019 and that he was notified of his dismissal on 22 February 2019, with the dismissal taking effect on the same day. Mr Forbes said the remedy he was seeking was his four days’ pay in full.

[3] On 25 February 2019, the Commission twice attempted to telephone Mr Forbes and on both occasions a voicemail was left seeking his return call.

[4] On 26 February 2019, two telephone messages were again left for Mr Forbes. Email correspondence was also sent to Mr Forbes requesting he telephone the Commission in regards to his unfair dismissal application.

[5] On 27 February 2019, further email correspondence was sent to Mr Forbes advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Forbes to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period.

[6] On 14 March 2019, Mr Forbes was advised via email that no material had been received from him. It was noted that unless he contacted the Commission within seven days and provided an acceptable explanation of why he did not respond to the direction contained in the first email, his application would be determined on the material currently before the Commission without further reference to him.

[7] On 26 March 2019, a final attempt was made to contact Mr Forbes via telephone and a voicemail message was left.

[8] To date, the Commission has not received any documentation or correspondence from Mr Forbes.

[9] 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.

[10] Section 383 of the 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.”

[11] Section 587(1) of the 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] Having regard to the circumstances of this matter, I am satisfied that as Mr Forbes 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 Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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