Tony Colombari v R & E Davis Pty Ltd

[2016] FWC 8355

[2016] FWC 8355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Colombari
v
R & E Davis Pty Ltd
(U2016/10838)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 1 September 2016, Mr Tony Colombari made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Colombari advised that he commenced employment with R & E Davis Pty Ltd on 11 January 2016 and that his dismissal took effect on 20 August 2016.

[3] On 15 September 2016, R & E Davis Pty Ltd filed its response to the application and noted that at the time Mr Colombari was dismissed, there were five employees, excluding two Directors/Owners. It raised a jurisdictional objection that Mr Colombari had not served the minimum employment period.

[4] On 4 October 2016, correspondence was sent to Mr Colombari indicating that R & E Davis Pty Ltd had objected to the application on the grounds he had not served the minimum employment period. The correspondence required Mr Colombari to complete an Outline of Argument: Minimum Employment Period, Statement of Evidence and Document list by close of business on 19 October 2016. It was noted that should Mr Colombari accept he had not served the minimum employment period, he may discontinue his application by filing a Form F50 – Notice of Discontinuance or by emailing or telephoning the Fair Work Commission.

[5] On 13 October 2016, R & E Davis Pty Ltd filed material in support of its jurisdictional objection that Mr Colombari had not served the minimum employment period. Its submissions were that at the time of Mr Colombari’s dismissal, it was a small business with fewer than 15 employees.

[6] Mr Colombari did not file any material by close of business on 19 October 2016.

[7] On 28 October 2016, the Commission attempted to contact Mr Colombari via telephone, however, this was unsuccessful.

[8] On 2 November 2016, a letter was sent to Mr Colombari via post and email, advising that unless he contacted the Commission by close of business on 16 November 2016 and provided an acceptable explanation as to why he did not respond to the direction contained in the correspondence of 4 October 2016, his application would be dismissed without further reference to him.

[9] Mr Colombari did not contact the Commission or file any material by close of business on 16 November 2016.

[10] 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.

[11] 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.”

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

[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 section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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