Tony (Nigel) Scrimshaw v Family Trust T/A Heart 2 Heart Disability Services T/A Heart 2 Heart Disability Services

[2021] FWC 1253

[2021] FWC 1253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony (Nigel) Scrimshaw
v
Family Trust T/A Heart 2 Heart Disability Services T/A Heart 2 Heart Disability Services
(U2021/1287)

COMMISSIONER BISSETT MELBOURNE, 9 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 17 February 2021 Mr Tony (Nigel) Scrimshaw 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 Scrimshaw advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Family Trust T/A Heart 2 Heart Disability Services T/A Heart 2 Heart Disability Services on 15 February 2021 and that his dismissal took effect on 15February 2021.

[3] On 17February 2021 the Commission attempted to contact Mr Scrimshaw on his nominated telephone number. A voicemail message was left requesting confirmation of employment commencement date and for payment of the filing fee or a completed fee waiver form.

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

[5] On 18 February 2021 an email was received from Mr Scrimshaw advising that he commenced employment on 4 November 2020. Later that day, the commission attempted to contact Mr Scrimshaw to discuss the minimum employment period, a voicemail was left requesting a return call to discuss this information.

[6] As documentation demonstrating that Mr Scrimshaw had completed the minimum employment period was not received, on 3 March 2021 the Commission attempted to contact Mr Scrimshaw on his nominated telephone number. However, Mr Scrimshaw could not be reached. A voicemail message was left advising that the commencement date provided did not meet the minimum employment period and payment had still not been made, or a completed fee waiver form submitted.

[7] On 4 March 2021 the Commission again attempted to contact Mr Scrimshaw on his nominated telephone number. However, Mr Scrimshaw could not be reached. A voicemail message was left advising that the commencement date provided did not meet the minimum employment period and payment had still not been made, or a completed fee waiver form submitted.

[8] To date, Mr Scrimshaw has not replied to the Commission’s telephone messages.

[9] 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.

[10] 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.

[11] 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.

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Scrimshaw 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

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