Stuart Dougall v Ron Englehart Pty Ltd T/A Englehart Homes

[2020] FWC 3546

[2020] FWC 3546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Dougall
v
Ron Englehart Pty Ltd T/A Englehart Homes
(U2020/7854)

COMMISSIONER BISSETT MELBOURNE, 9 JULY 2020

Application for an unfair dismissal remedy.

[1] On 8 June 2020 Mr Stuart Dougall 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 Dougall advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Ron Englehart Pty Ltd T/A Englehart Homes on 20 January 2020 and that his dismissal took effect on 19 May 2020.

[3] On 9 June 2020, the Commission attempted to contact Mr Dougall on his nominated telephone number. A voicemail message was left requesting Mr Dougall contact the Commission as he did not appear to have met the minimum employment period. The voicemail also advised he could access the Commission’s website for further information about the minimum employment period.

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

[5] As the required documentation was not received, on 22 June 2020 the Commission attempted to contact Mr Dougall on his nominated telephone number. Mr Dougall could not be reached. A voicemail message was left advising that the Commission was following up on previous attempts to contact him as he does not appear to meet the minimum employment period. The Commission requested he return the call or provide any relevant information about his employment period. The voicemail message also stated that Mr Dougall may discontinue the application but that the application may be dismissed if the Commission did not hear from him.

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

[7] 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.

[8] 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.

[9] 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.

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

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

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