Shane Bosgard v Howler Brewing Company Pty Ltd
[2024] FWC 1510
•8 AUGUST 2024
| [2024] FWC 1510 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shane Bosgard
v
Howler Brewing Company Pty Ltd
(U2024/4044)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 8 AUGUST 2024 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
Mr Shane Bosgard applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 8 April 2024.
Mr Bosgard stated in his unfair dismissal application (Form F2) that his employment with Howler Brewing Company Pty Ltd (Respondent) commenced on 12 December 2023, his dismissal notification date was 2 March 2024 and his effective dismissal date was 17 March 2024.
On 12 April 2024, the Commission attempted to contact Mr Bosgard on his nominated mobile number. A voicemail message was left requesting Mr Bosgard to urgently contact the Commission. This is because the information provided in his Form F2 suggested that he may not have served the applicable minimum employment period to be protected from unfair dismissal under the Act. Later that day, the Commission emailed correspondence to Mr Bosgard’s nominated email address advising him that he had not served the applicable minimum employment period based on the information he had provided in his Form F2. The correspondence directed Mr Bosgard to file any document to support his claim that he had worked for the Respondent for the applicable minimum employment period under the Act. That correspondence also warned Mr Bosgard that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.
The Commission did not receive any documents in support of Mr Bosgard’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 12 April 2024.
The Commission attempted to contact Mr Bosgard on his nominated telephone number on 30 April 2024. The call was not answered and a voicemail message was left requesting that Mr Bosgard contact the Commission by the close of business on 30 April 2024. Mr Bosgard did not respond and has not responded to the Commission’s attempts to contact him in relation to his Form F2 application.
Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.
Section 383 of the 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.” (bold and italicised text in the original)
Section 587 of the Act relevantly provides as follows:
“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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.” (bold and italicised text in the original)
To be protected from unfair dismissal, a person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer. The material before the Commission indicates that Mr Bosgard has not satisfied this requirement and, therefore, I am satisfied that his application has no reasonable prospects of success As such, Mr Shane Bosgard’s unfair dismissal 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] PR775849.
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