Simon Ball v Ultimate Business Systems

[2021] FWC 1091

[2021] FWC 1091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Ball
v
Ultimate Business Systems
(U2021/952)

COMMISSIONER BISSETT MELBOURNE, 1 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 7 February 2021 Mr Simon Ball 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).

[2] Mr Ball advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Ultimate Business Solutions on 29 July 2020 and that his dismissal took effect on 18 January 2021.

[3] On 8 February 2021 the Commission contacted Mr Ball on his nominated telephone number. The Commission informed Mr Ball that, based on the dates provided on the Form F2, it appeared he had not met the minimum employment period. Mr Ball advised that he may have commenced his employment earlier and that he would attempt to locate documents indicating this and forward them to the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Ball’s nominated email address confirming with Mr Ball that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Ball to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Ball that if he did not contact the Commission within 14 days his application may be dismissed without further notice. An SMS notification was also sent to Mr Ball’s nominated telephone number.

[5] As the required documentation was not received by the date required, the Commission contacted Mr Ball by telephone on 22 February 2021. Mr Ball advised that despite not having found any documentation indicating that he had satisfied the minimum employment period, he wished to proceed with the matter. During this call, the Commission again requested documentation indicating that he had worked the minimum employment period by 23 February 2021.

[6] On 22 February 2021, the matter was referred to Deputy President Mansini, acting Panel Head for unfair dismissals at the Commission.

[7] As there was no further contact from the applicant by 23 February 2021, Deputy President Mansini issued the following directions:

1. By no later than 4.00 pm on Thursday, 24 February 2021, Mr Ball is to file with the Commission and serve on Ultimate Business Systems any documentation or evidence showing that he completed the minimum employment period.

2. By no later than 4.00 pm on Friday 25 February 2021, Ultimate Business Systems is invited to file with the Commission and serve on Mr Ball anything it wishes to say in response to the question of whether Mr Ball completed the minimum employment period.

[8] While I note these directions contain a typographical error (24 February 2021 was a Wednesday and 25 February 2021 was a Thursday both Wednesday 24 February 2021 and Thursday 25 February 2021 have both passed with no correspondence from Mr Ball.

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

[10] 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.

[11] 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.

[12] 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 prospects of success.

[13] In the circumstances of this matter, I am satisfied Mr Ball has not completed the required minimum employment period.

[14] Having regard to the circumstances of this matter I am satisfied that as Mr Ball 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

Printed by authority of the Commonwealth Government Printer

<PR727375>

 1   PR727383.