Travis Maloney v Burbank Homes T/A Burbank

[2017] FWC 3034

[2017] FWC 3034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Travis Maloney

v

Burbank Homes T/A Burbank

(U2017/4390)

Deputy President Clancy MELBOURNE, 2 JUNE 2017

Application for an unfair dismissal remedy.

1. On 21 April 2017, Mr Travis Maloney made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. Mr Maloney advised that he commenced employment with Burbank Homes T/A Burbank on 9 January 2017 and that his dismissal took effect on 31 March 2017.

1. On 26 April 2017, the Fair Work Commission (the Commission) sent correspondence to Mr Maloney advising that on the basis of the information contained in his Form F2—Unfair dismissal application, he had not served the minimum employment period.

1. This correspondence further advised Mr Maloney that his application was made without payment of the filing fee.  Mr Maloney was provided a copy of a fee waiver form and advised that payment of the filing fee or a completed waiver form was required from him within 14 days if he wished to proceed with his application.

1. It would appear this correspondence prompted Mr Maloney to telephone the Commission later on the same day. As the issue with his application was being explained to him, he became upset and started yelling at the Commission staff member who took his call. Sensibly, the matter was escalated to the next level of Commission management and in a subsequent telephone call Mr Maloney was further advised regarding the details of his incomplete application and the minimum employment period.

1. In order to ensure he could be satisfied in relation to the veracity of the issues with his application as filed, it was suggested to Mr Maloney that he may wish to get independent legal advice. The Commission informed Mr Maloney that a consent form had been mailed to him which he could complete and return in order to obtain one hour of free legal assistance as part of the Workplace Advice Clinic (WAC). Mr Maloney confirmed this and advised that he intended to pursue his application.

1. On Friday 28 April 2017, the Commission telephoned Mr Maloney to advise that neither the filing fee nor a completed waiver form had been received by the Commission. Mr Maloney stated that he would provide a completed application and fee waiver form over the weekend.

1. The Commission advised Mr Maloney it would send him further written correspondence regarding his incomplete application. The correspondence sent to Mr Maloney on 28 April 2017 advised he had a further 14 days to provide the necessary documentation and if no advice was received by the Commission within this time, his application may be dismissed.

1. On 9 May 2017, the Commission telephoned Mr Maloney regarding the status of his application. Mr Maloney confirmed that he had received the documentation sent by the Commission and intended to return a completed application along with a fee waiver and WAC consent form the following day.

1. On 18 May 2017, the Commission telephoned Mr Maloney and was in the process of recording a voice message on his answering machine when it received an incoming call from him. However, after the Commission staff member introduced themselves, Mr Maloney terminated the telephone call. 

1. Since this date, Mr Maloney has not contacted the Commission or provided the necessary details as requested.

1. Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)  one or more of the following apply:

(i)  a modern award covers the person;

(ii)  an enterprise agreement applies to the person in relation to the employment;

(iii)  the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

1. 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.

1. Section 395 of the Act, which deals with application fees, provides:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

1. Having regard to the above, Mr Maloney has failed to file a completed application. He did not pay the required fee or file a completed waiver form for assessment.

1. Further, based on the material before me, which has at no stage been supplemented or explained further by Mr Maloney despite repeated requests and opportunities for him to do so, I am satisfied Mr Maloney has not completed the required minimum employment period.

1. The material indicates Mr Maloney had completed just 12 weeks of employment when his employment terminated and despite this fatal issue with his application having been explained to him and six attempts to elicit further particulars from him to explain otherwise, he did not provide any further information.

1. 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.

1. Mr Maloney’s application has no reasonable prospects of success because his brief period of employment with Burbank falls well short of the minimum employment period. His application is dismissed under s.587(1)(c) of the Act and an Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593446>