Simon Forsyth v Hungry Jacks Whyalla

[2015] FWC 3976

[2015] FWC 3976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Forsyth
v
Hungry Jacks - Whyalla
(U2015/7332)

COMMISSIONER WILSON MELBOURNE, 12 JUNE 2015

Application for relief from unfair dismissal.

[1] On 4 May 2015, Mr Simon Forsyth made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Forsyth advised that he commenced employment with Hungry Jacks - Whyalla in mid November 2014 and that his dismissal took effect on 13 April 2015.

[3] On 7 May 2015, correspondence was sent to Mr Forsyth pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Forsyth to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 21 May 2015, further correspondence was sent to Mr Forsyth allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] Between the dates of 5 May 2015 – 4 June 2015, five attempts were made to contact Mr Forsyth by telephone and voicemail messages were left.

[6] To date, Mr Forsyth has not responded to any correspondence or voicemails.

[7] Section 382 of the 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 Act sets out the minimum employment period:

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] In the circumstances of this matter, I am satisfied Mr Forsyth has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] Section 587(1) 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.

[11] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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