Thomas Schumacher v Graham Betts Motors Pty Limited T/A Graham Betts Caravan & Marine Centre

[2014] FWC 8722

[2014] FWC 8722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Schumacher
v
Graham Betts Motors Pty Limited T/A Graham Betts Caravan & Marine Centre
(U2014/8766)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 14 August 2014, Mr Thomas Schumacher made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Schumacher advised that he commenced employment with Graham Betts Motors Pty Limited T/A Graham Betts Caravan & Marine Centre on 3 February 2014 and that his dismissal took effect on 2 August 2014.

[3] On 9 October 2014, the Fair Work Commission received correspondence from the employer that Mr Schumacher was employed from 10 February 2014 and dismissed on 27 July 2014.

[4] On 10 October 2014, correspondence was sent to Mr Schumacher 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 Schumacher to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 23 October 2014, the Commission attempted to contact Mr Schumacher in relation to the correspondence dated 10 October 2014. A voicemail message was left for Mr Schumacher to contact the Commission.

[6] On 3 November 2014, the Commission attempted to contact Mr Schumacher. Further correspondence was forwarded to Mr Schumacher allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] Mr Schumacher did not reply to that correspondence.

[8] 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.

[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] Accepting Mr Schumacher’s advice that he commenced work on 3 February 2014 and his dismissal took effect on 2 August 2014, I am satisfied Mr Schumacher has not completed the required minimum employment period and his application has no reasonable prospects of success.

[11] Section 2G of the Acts Interpretation Act 1901 defines a months as follows:

(1) In any Act, month means a period:

(a) starting at the start of any day of one of the calendar months; and
(b) ending:

(i)  immediately before the start of the corresponding day of the next calendar month; or
(ii)  if there is no such day--at the end of the next calendar month.

Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.

Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).

(2)  In any Act, a reference to a period of 2 or more months is a reference to a period:

(a)  starting at the start of a day of one of the calendar months (the starting month ); and
(b)  ending:

(i)  immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or
(ii)  if there is no such day--at the end of the calendar month that is that number of calendar months after the starting month.

Example 1: A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.

Example 2: A reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).

[12] Consequently the six months ends immediately before 3 August 2014. As such, Mr Schumacher’s employment ended before the six months ended.

[13] 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.

[14] 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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