Sonniville Ferry v 10x Grooming Pty Ltd Summary

[2024] FWC 1002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sonniville Ferry
v

10x Grooming Pty Ltd

(U2024/2488)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 APRIL 2024

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

On 6 March 2024, Mr Sonniville Ferry 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 Ferry advised in his Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with 10x Grooming Pty Ltd (the Respondent) on 13 February 2024 and that his dismissal took effect on 5 March 2024.

On 12 March 2024, the Commission contacted Mr Ferry on his nominated telephone number. During this call, Mr Ferry confirmed that the dates provided in his Form F2 application were accurate.

On 18 March 2024, the Commission attempted to contact the Mr Ferry on his nominated telephone number. However, Mr Ferry could not be reached. A voicemail message was left requesting that Mr Ferry contact the Commission and advising that an email with further information will also be issued. Later that day, the Commission emailed correspondence to Mr Ferry’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Ferry 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 Mr Ferry did not contact the Commission within 14 days, his application may be dismissed without further notice. An SMS notification was also sent to Mr Ferry’s nominated telephone number requesting that he contact the Commission.

As the required documentation was not received, on 3 April 2024, the Commission attempted to contact Mr Ferry on his nominated telephone number. However, Mr Ferry could not be reached. A voicemail message was left requesting Mr Ferry urgently contact the Commission and that his application was at risk of being dismissed if no contact was received. To date, Mr Ferry has not made any further contact with the Commission.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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.

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 prospects of success.

As the material before the Commission indicates Mr Ferry has not completed the required minimum employment period under the FW Act, I am persuaded the 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.

DEPUTY PRESIDENT

[1] PR773571.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Mr Sonniville Ferry applied for relief from unfair dismissal against his employer, 10x Grooming Pty Ltd. Mr Ferry alleged that he had been dismissed on 5 March 2024, just three weeks after starting employment on 13 February 2024. The Commission was required to determine whether Mr Ferry had served the requisite minimum employment period under the Fair Work Act 2009 (FW Act), and whether his application had reasonable prospects of success.

The central legal issue was whether Mr Ferry had completed the minimum employment period before his dismissal, which would entitle him to protection from unfair dismissal under the Act. Under section 382 of the FW Act, an employee is protected from unfair dismissal if they have completed a period of employment. For employers that are not small business employers, the minimum employment period is six months, while for small business employers it is one year. In this case, the Commission needed to determine whether 10x Grooming Pty Ltd qualified as a small business employer. If it did, the minimum employment period would be one year, which Mr Ferry had not met, as he had only been employed for less than six months. The Commission needed to assess the evidence to determine if Mr Ferry had indeed served the minimum employment period and if his application had reasonable prospects of success.

The Deputy President reviewed the information provided by Mr Ferry and noted that the employer had not been identified as a small business employer. Therefore, the minimum employment period was six months. Mr Ferry had only been employed for approximately three weeks, which was well short of the six-month requirement. The Commission had attempted multiple times to contact Mr Ferry to request additional evidence to support his claim that he had served the required minimum employment period. Despite these efforts, Mr Ferry did not provide any further documentation or contact the Commission. Given the absence of evidence and Mr Ferry’s failure to engage with the Commission, it was concluded that his application had no reasonable prospects of success. Consequently, the application was dismissed under section 587(1)(c) of the FW Act. An order to this effect will be issued with this decision.

Sonniville Ferry v 10x Grooming Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established