Shawn Elwell v David Drummond

[2023] FWC 863

[2023] FWC 863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shawn Elwell
v

David Drummond

(U2023/2099)

COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2023

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

1. On 14 March 2023 Shawn Elwell 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 Elwell advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with David Drummond on 6 December 2022 and that his dismissal took effect on 14 March 2023.

1. On 17 March 2023 the Commission attempted to contact Mr Elwell on his nominated telephone number. A voicemail message was left requesting a return call to the Commission.

1. On 20 March 2023 the Commission sent correspondence to Mr Elwell’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Elwell to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Mr Elwell’s nominated telephone number requesting that he contact the Commission.

1. As the required documentation was not received, on 5 April 2023 the Commission attempted to contact Mr Elwell on his nominated telephone number. However, he could not be reached. A voicemail message was left requesting a return call to the Commission.

1. To date Mr Elwell 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. I am satisfied Mr Elwell has not completed the required 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 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 prospect of success.

1. As Mr Elwell has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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