Steven Hardman v R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd

[2016] FWC 3579

[2016] FWC 3579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hardman
v
R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd
(U2016/6030)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 JUNE 2016

Application for relief from unfair dismissal.

[1] On 7 April 2016, Mr Steven Hardman made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hardman advised that he commenced employment with R T Rossi Enterprises Pty Ltd T/A R T Rossi Enterprises Pty Ltd in November 2015 and that his dismissal took effect on 25 March 2016.

[3] On 11 April 2016, the Fair Work Commission contacted Mr Hardman’s representative and advised that on the basis of the information contained in the application, he had not served the minimum employment period. On the same date, the Commission sent email correspondence confirming the advice to Mr Hardman and his representative. The correspondence required Mr Hardman to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 27 April 2016, the Commission attempted to contact Mr Hardman and his representative and the calls were not answered.

[5] On 6 May 2016, the Commission attempted to contact Mr Hardman’s representative and the call was not answered and on the same date the Commission sent email correspondence allowing a further 7 days in which to reply, after which time the application would be dismissed.

[6] On 17 May 2016, the Commission made a further attempt to contact Mr Hardman’s representative and the call was not answered and a voice message was left.

[7] To date, Mr Hardman and his representative have not replied to the correspondence dated 6 May 2016.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if he has completed a period of employment of at least the minimum employment period.

[9] 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.

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

[11] 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.

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

DEPUTY PRESIDENT

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