Shane Kavanagh v Buick Holdings Pty Ltd

[2022] FWC 218

[2022] FWC 218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shane Kavanagh
v

Buick Holdings Pty Ltd

(U2022/851)

COMMISSIONER BISSETT MELBOURNE, 2 FEBRUARY 2022

Application for an unfair dismissal remedy

1. On 18 January 2022 Mr Shane Kavanagh 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 Kavanagh advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Buick Holdings Pty Ltd on 4 October 2021and that his dismissal took effect on 7 January 2022.

1. On 19 January 2021 the Commission contacted Mr Kavanagh on his nominated telephone number. Mr Kavanagh refused to talk over the phone and requested not to be contacted by phone again.

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

1. As the required documentation was not received, on 31 January 2022 the Commission emailed follow up correspondence to Mr Kavanagh’s nominated email address advising that any documents/evidence were required by 1 February 2022. No attempt was made to contact Mr Kavanagh by telephone on his nominated contact number due his previous request.

1. To date, Mr Kavanagh has not replied to the Commission’s correspondence.

1. 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.

1. 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.

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. Having regard to the circumstances of this matter I am satisfied that as Mr Kavanagh 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

[1] PR737979.

Printed by authority of the Commonwealth Government Printer

<PR737978>