Timothy Hunter v CVGT Australia

[2021] FWC 5592

[2021] FWC 5592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Hunter
v
CVGT Australia
(U2021/7101)

COMMISSIONER BISSETT MELBOURNE, 11 SEPTEMBER 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 11 August 2021, Mr Timothy Hunter (Applicant) 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] The Applicant advised in the Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with CVGT Australia on 26 July 2021 and that his dismissal took effect on 6 August 2021.

[3] On 12 August 2021, the Commission attempted to telephone the Applicant on his nominated telephone number to discuss his employment dates however the Applicant did not answer the call. A voicemail message was left advising that based on the information he had provided it appeared he did not meet the minimum employment period necessary to make an unfair dismissal application. The message also requested that the Applicant return the Commission’s call.

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

[5] As the required documentation was not received, on 30 August 2021 the Commission again attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left advising that if the Commission did not receive communication from him by close of business 31 August 2021, the matter may be dismissed. No response was received.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as the Applicant 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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