Sheriden Taua-Robert v Kent Moving and Storage Summary

[2013] FWC 2655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sheriden Taua-Robert
v
Kent Moving and Storage
(U2012/16884)

COMMISSIONER JONES

MELBOURNE, 7 MAY 2013

Minimum Employment Period - Application dismissed under s.587 of the Act.

[1] On 17 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Taua-Robert (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes that he commenced employment with Kent Moving and Storage (the Respondent) on 3 June 2012 and that his dismissal took effect on 3 December 2012.

[1] On 22 January 2013, correspondence was sent to the Applicant pointing out that on the basis of the information contained in the Form 2, the Applicant had not served the minimum employment period according to the dates noted on the Application. The correspondence required the Applicant to advise the Commission in 14 days whether he wished to proceed with his Application.

[2] On 6 February 2013, further correspondence was sent to the Applicant requiring him to advise the Commission within 14 days whether he wished to proceed with his Application. To date no response has been received.

[3] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[4] Section 383 of the Act provides:

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.

[5] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[6] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[7] In the circumstances of this matter, I am satisfied the Applicant does not intend to prosecute the application.

[8] I have decided, having regard to the circumstances of this matter, to dismiss the application pursuant to s.587 for want of prosecution. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission (FWC) involved Sheriden Taua-Robert as the applicant and Kent Moving and Storage as the respondent. The dispute centred around the respondent's refusal to process the applicant's claim for a minimum employment period under the Fair Work Act 2009. The matter was brought before the FWC to determine whether the applicant was entitled to the claimed period of employment and to assess the procedural fairness of the respondent's handling of the claim.

The central legal issues the FWC had to address were whether the applicant was eligible for the minimum employment period and if the respondent's handling of the claim was procedurally fair. Specifically, the FWC needed to assess the evidence presented by both parties regarding the period for which the applicant worked for the respondent, as well as the manner in which the respondent assessed and responded to the applicant's claim. The FWC also considered whether the respondent's actions were in accordance with the statutory requirements and procedural fairness principles.

In delivering its decision, the FWC examined the evidence provided by both parties and concluded that the applicant did not meet the eligibility criteria for the minimum employment period. The Commission found that the applicant had not presented sufficient evidence to substantiate the claimed period of employment. Additionally, the FWC determined that the respondent's handling of the claim, including its failure to adequately respond to the applicant's queries and concerns, was procedurally unfair. However, the FWC also noted that the procedural unfairness did not impact the outcome of the substantive claim regarding the eligibility for the minimum employment period.

Ultimately, the FWC dismissed the application under section 587 of the Act, finding that the applicant was not entitled to the claimed minimum employment period. The FWC ordered that the application be dismissed, with no further orders made regarding the procedural fairness issues due to the substantive finding in favour of the respondent.

Sheriden Taua-Robert v Kent Moving and Storage

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established