Timothy Marshall v John Holland T/A John Holland

[2021] FWC 1192

[2021] FWC 1192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Marshall
v
John Holland T/A John Holland
(U2021/1235)

COMMISSIONER BISSETT MELBOURNE, 4 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 15 February 2021, Mr Timothy Marshall 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 Marshall advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with John Holland T/A John Holland on 27 January 2021 and that his dismissal took effect on 1 February 2021. The lodgement of the application was acknowledged in accordance with the Fair Work Commission Rules 2013.

[3] On 16 February 2021, the Commission attempted to contact Mr Marshall on his nominated telephone number. A voicemail message was left requesting that he contact the Commission on their helpline to discuss his application.

[4] Later that day, the Commission emailed correspondence to Mr Marshall’s nominated email address advising him that based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Marshall 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 Marshall did not contact the Commission within 14 days, that the application may be dismissed without further notice.

[5] On 17 February 2021 Mr Marshall emailed the Commission in response to the acknowledgement email. Later that day the Commission replied to Mr Marshall’s email advising him that a separate email had been sent to him on 16 February 2021 outlining the additional information required and that he should respond to that email request for information within 14 days. The email also advised Mr Marshall that if he had not received the email or wished to discuss the matter further that he should contact the Commission’s helpline.

[6] On 19 February 2021 Mr Marshall emailed the Commission in relation to the minimum employment period letter that they had sent advising that he was aware that he did not meet the minimum employment period but as his application was regarding discrimination, he believed that the minimum employment period did not apply.

[7] Mr Marshall emailed the Commission again on 19 February 2021 in response to the acknowledgement email and again asked what information the Commission needed and advised that he could not see the email in which the Commission was asking him for additional information.

[8] Later that day the Commission sent Mr Marshall a further email responding to both of those sent by him earlier that day. The Commission advised Mr Marshall that there are two applications that deal with a dismissal dispute – unfair dismissal and general protections involving dismissal. The Commission advised Mr Marshall that the application that he had lodged was an unfair dismissal application and that he had been sent correspondence on 16 February 2021 because, based on the information provided in his application, he did not meet the minimum employment period that was required for a valid unfair dismissal application. The Commission provided Mr Marshall with information about how to obtain legal advice and how he could discontinue the matter if he chose to do so. The Commission also informed Mr Marshall that he has 21 calendar days to lodge a dismissal application from the date the dismissal took effect.

[9] Again, on that day and after close of business, Mr Marshall sent the Commission an email advising that he thought that if it was an unfair dismissal based on discrimination of a disability then it didn’t matter how long the person was employed for. He asked if that was correct.

[10] On the next business day 23 February 2021, the Commission attempted to contact Mr Marshall on his nominated mobile number to discuss the matter further. A voicemail message was left advising him that the Commission wished to discuss the email that was sent on 19 February 2021 and asking him to contact the Commission on the helpline.

[11] The Commission also sent Mr Marshall an email that same day to his nominated email address advising that an attempt to contact him by telephone had been made and a voicemail message left. The Commission again advised Mr Marshall that, according to the dates provided in his application, he did not meet the minimum employment period that would allow him to make an unfair dismissal application. The Commissioner therefore had no jurisdiction to deal with his application. Mr Marshall was again provided with information about how to obtain legal advice and reminded of the time frame for making either an unfair dismissal application or a general protections dismissal application. The Commission asked Mr Marshall to contact the helpline to discuss the matter as soon as possible.

[12] On 26 February 2021 Mr Marshall emailed the Commission advising that he took the quiz and has identified that he is eligible for general protections and fits the criteria. Mr Marshall advised that he made the wrong application and asked if he could change it to general protections.

[13] Later that day the Commission responded to Mr Marshall via email. The Commission advised Mr Marshall that his application could not be changed from one to the other. He was advised that if he wished to discontinue the unfair dismissal matter he should complete the Form F50 – Notice of Discontinuance and if he wished to, he could lodge a general protections involving dismissal application separately. The Commission provided Mr Marshall with information about the timeframe for lodgment and advised that he would need to consider whether the new application would be lodged within time. The Commission also provided him with information about how to obtain legal advice and advised him to contact the helpline if he wished to discuss the matter further.

[14] As the required documentation in relation to Mr Marshall’s minimum employment period was not received, on 1 March 2021 the Commission attempted to contact Mr Marshall via his nominated telephone number. However, Mr Marshall could not be reached. A voicemail message was left requesting Mr Marshall to contact the Commission as soon as possible to advise them what he wished to do as the matter was still outstanding. Mr Marshall was advised that if he did not contact the Commission by close of business 2 March 2021 his application for unfair dismissal may be dismissed. Mr Marshall was advised that an email was sent to him on 26 February 2021 in response to his latest enquiry.

[15] To date, Mr Marshall has not replied to the Commission’s correspondence or responded to the most recent phone call.

[16] 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.

[17] In the circumstances of this matter, I am satisfied Mr Marshall has not completed the required minimum employment period and his application has no reasonable prospects of success.

[18] 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.

[19] 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.

[20] Having regard to the circumstances of this matter I am satisfied that as Mr Marshall has not completed the required minimum employment period under the FW Act, his/her 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

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