Vaughan Stott v Civeo Pty Ltd

[2022] FWC 621

[2022] FWC 621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vaughan Stott

v

Civeo Pty Ltd

(U2022/2510)

cOMMISSIONER bISSETT melbourne, 21 MARCH 2022

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

1. On 26 February 2022, Mr Vaughan Stott (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).

1. The Applicant advised in the Form F2 – Unfair dismissal application (Form F2) that he commenced employment with Civeo Pty Ltd on 9 August 2022 [sic] and that he was notified of his dismissal on 8 February 2022 however the Applicant says he was later issued with an amended letter of termination dated 9 February 2022.

1. The Commission sent correspondence to the Applicant by email and post advising the Applicant that based on 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. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. On 28 February 2022 the Applicant contacted the Commission to confirm the commencement date of employment and to discuss the date of dismissal. The Commission provided the Applicant with information regarding general protections applications as well as suggesting he seek legal advice. The Commission also advised the Applicant it would send him information on the Workplace Advice Service.

1. Following the telephone conversation with the Commission the Applicant filed an amended Form F2 advising that he commenced employment with the Respondent on 9August 2021 and that he was notified of his dismissal on “8/2/2022…this was amended to the 9/2/2022…”.

1. On 15 March 2022 the Commission contacted the Applicant on his nominated telephone number. The Applicant answered, said he was busy and ended the call.

1. To date, the Applicant has not provided the requested information.

1. 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.

1. In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

1. 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.

1. 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 prospects of success.

1. 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

[1] PR739500

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