Timothy Charles Yarrow v Mentone Girls Grammar School

[2022] FWC 1656

[2022] FWC 1656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Charles Yarrow
v

Mentone Girls Grammar School

(U2022/5865)

COMMISSIONER O’NEILL MELBOURNE, 28 JUNE 2022

Application for an unfair dismissal remedy – minimum employment period – dismissal under s587 at the Commission’s initiative.

1. On 31 May 2022 Mr Timothy Charles Yarrow 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).

1. Mr Yarrow advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mentone Girls Grammar School on 24 January 2022 and that he was notified of his dismissal on 30 May 2022.

1. On 31 May 2022 the Commission attempted to contact Mr Yarrow on his nominated telephone number. A voicemail message was left advising Mr Yarrow that it appeared he had not served the minimum employment period required to lodge an unfair dismissal application and to call the Commission’s helpline to discuss.

1. Later that day, the Commission emailed correspondence to Mr Yarrow’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Yarrow to file any documents/evidence to support a claim that he had served the required minimum employment period. That correspondence also warned that if Mr Yarrow did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. Later that day, Mr Yarrow emailed the Commission stating “I have worked from the 24 Jan to 24 June as they are continuing to pay me until that day, fulfilling my six month contract. Surely this is the 6 month time frame required to take this further?”

1. On 1 June 2022, the Commission attempted to contact Mr Yarrow by telephone regarding his email, but there was no answer. A voicemail message was left advising Mr Yarrow that on the basis of the dates provided in the email (24 January 2022 to 24 June 2022) it appeared he had been employed for 5 months and had not completed the minimum employment period.

1. On 9 June 2022, the Commission attempted to contact Mr Yarrow by telephone, but he did not answer. A voicemail message was left explain that as it appeared Mr Yarrow that as it appeared he had not met the minimum employment period his application may be dismissed.

1. On 14 June 2022 the Commission made a final attempt to contact Mr Yarrow by telephone, but he did not answer. Another voicemail message was left requesting he urgently respond to the Commission regarding the minimum employment period, otherwise his application may be dismissed.

1. On 27 June 2022 Mr Yarrow emailed the Commission. In that correspondence Mr Yarrow did not provide any evidence that he had satisfied the minimum employment period and he confirmed that his period of employment with the respondent was for 5 months.

1. 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.

1. In the circumstances of this matter, I am satisfied Mr Yarrow has not completed the required minimum employment period.

1. 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.

1. 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 prospect of success.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Yarrow 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 with this decision.

COMMISSIONER

[1] PR743119.

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