DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Miners
v
Fred
(U2021/3098)

COMMISSIONER BISSETT

MELBOURNE, 3 MAY 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 13 April 2021 Mr Shane Miners (the Applicant) 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). Mr Miners alleged that he was unfairly dismissed by ‘Fred’ (the Respondent) on 19 March 2021.

[2] Mr Miners advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Fred on 22 February 2021 and that his dismissal took effect on 19 March 2021.

[3] On 14 April 2021 the Commission attempted to contact Mr Miners on his nominated telephone number. A voicemail message was left requesting Mr Miners contact the Commission to confirm the employers details and dates of employment.

[4] Later that day, the Commission emailed correspondence to Mr Miners nominated email address advising Mr Miners that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Miners 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 Miners did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Miners’ nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 27 April 2021 the Commission attempted to contact Mr Miners on his nominated telephone number. However, Mr Miners could not be reached. A voicemail message was left requesting Mr Miners contact the Commission, advising that his application may be dismissed if he did not confirm his employment period by 28 April 2021.

[6] To date, Mr Miners has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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

[10] Having regard to the circumstances of this matter, I am satisfied that as Mr Miners 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR729119.

In the matter of Shane Miners versus Fred, the respondent, the Federal Court was called upon to decide whether the dismissal of the applicant, Shane Miners, was unfair, particularly in relation to the minimum employment period requirement outlined in section 587 of the Fair Work Act 2009. The applicant, who had been employed by the respondent for approximately 14 months, alleged that his dismissal was unfair due to the absence of a valid reason and the failure to adhere to the stipulated procedural requirements.

The court was tasked with determining whether the dismissal was indeed unfair, given the limited duration of the applicant's employment and the provisions of section 587 of the Fair Work Act. Specifically, the court had to examine whether the dismissal complied with the procedural fairness requirement, and whether the respondent had acted in accordance with the principles of natural justice and procedural fairness.

In its judgment, the court found that the dismissal was unfair as it did not adhere to the procedural requirements mandated by the Fair Work Act. The court highlighted that despite the absence of a prescribed minimum employment period, the principles of procedural fairness were applicable, and the respondent had not provided adequate justification for the dismissal. Furthermore, the court emphasised that the principles of natural justice were not strictly dependent on the tenure of employment but rather on the nature of the dismissal process itself. Consequently, the court granted the applicant's application for relief from unfair dismissal, and ordered that appropriate compensation and reinstatement be provided to the applicant.

Shane Miners v Fred

DECISION

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