Thomas DuQuesnay v Northfleet T/A Northfleet Bus and Vehicle Hire

[2019] FWC 3997

[2019] FWC 3997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Thomas DuQuesnay
v
Northfleet T/A Northfleet Bus and Vehicle Hire
(U2019/4521)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 12 JUNE 2019

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 19 April 2019, Mr Thomas DuQuesnay made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

[2] Mr DuQuesnay advised that he commenced employment with Northfleet T/A Northfleet Bus and Vehicle Hire on 26 March 2019 and that his dismissal took effect on 31 March 2019. He was notified of his dismissal on 30 March 2019.

[3] On 23 April 2019 the Fair Work Commission (the Commission) made an unsuccessful attempt to contact Mr DuQuesnay by telephone to discuss his application. Correspondence was also sent 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 DuQuesnay to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 10 May 2019, the Commission telephoned Mr DuQuesnay and advised that on the basis of the information contained in the application, he had not served the minimum employment period. Mr DuQuesnay advised that he had attempted to make a claim through the Fair Work Ombudsman (the Ombudsman) and was following up unpaid wages and was not being allocated more shifts.

[5] On 21 May 2019 the Commission attempted to contact Mr DuQuesnay by telephone and a voice message was left and further correspondence was also sent to Mr DuQuesnay allowing a further 7 days in which to reply, after which time the application may be dismissed.

[6] On 25 May 2019, Mr DuQuesnay sent an email confirming that he intended to apply for assistance from the Ombudsman.

[7] On 29 May 2019, the Commission again attempted to contact Mr DuQuesnay by telephone. The call was not answered and a voicemail was left advising Mr DuQuesnay that his application with the Commission may be dismissed and that he could contact the Ombudsman in relation to his enquiry.

[8] To date, Mr DuQuesnay has provided no evidence that he meets the minimum employment period and has made no further contact with Commission.

[9] 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.

[10] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:

“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.”

[11] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Mr DuQuesnay has not completed the required minimum employment period. His application has no reasonable prospects of success.

[12] Section 587(1) of the FW 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.”

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709174>