DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warwick Chilcott
v
Shire of Ravensthorpe
(U2021/7211)

COMMISSIONER BISSETT

MELBOURNE, 13 SEPTEMBER 2021

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

[1] On 15 August 2021, Mr Warwick Chilcott (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).

[2] The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that his dismissal from Shire of Ravensthorpe (Respondent) took effect on 29 July 2021 however he did not provide the commencement date of employment.

[3] On 16 August 2021, the Commission attempted to telephone the Applicant on his nominated telephone number to request the missing details. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that he provide further details as the Form F2 was incomplete. The correspondence also warned the Applicant that if the information was not received the application may be dismissed.

[5] On 17 August 2021, the Commission received email correspondence from the Applicant advising that he commenced employment with the Respondent on 25 May 2021.

[6] On 20 August 2021, the Commission attempted to telephone the Applicant on his nominated telephone number to discuss his employment dates however the Applicant did not answer the call. A voicemail message was left requesting the Applicant return the Commission’s call. The Applicant failed to contact the Commission.

[7] On 3 September 2021 the Commission made a final attempt to telephone the Applicant on his nominated telephone number. The Applicant did not answer the call. A voicemail message was requesting the Applicant return the Commission’s call to discuss the application.

[8] To date, the Applicant has not returned the Commission’s calls.

[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

[12] 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 with this decision.

COMMISSIONER

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1 PR733646

The case of Warwick Chilcott against the Shire of Ravensthorpe arose in the Fair Work Commission, where the central issue was the fairness of the dismissal of Mr Chilcott, who had been employed by the Shire for a short period. The Shire had dismissed Mr Chilcott under section 587 of the Fair Work Act, at the Commission's initiative. Mr Chilcott challenged the dismissal, seeking relief on the grounds that it was unfair and that the statutory minimum employment period had not been met.

The primary legal questions before the Commission were whether the dismissal was procedurally and substantively fair and whether the statutory minimum employment period had been satisfied. The Fair Work Act stipulates that a person cannot be unfairly dismissed unless they have completed a minimum period of continuous employment. Additionally, the fairness of the dismissal, both procedurally and substantively, was a critical aspect of the case, given that the dismissal was initiated by the Commission.

In addressing these issues, the Commission found that Mr Chilcott had not satisfied the minimum employment period required by the Act. Consequently, the dismissal was deemed fair, as it did not contravene the statutory criteria for unfair dismissal. The Commission also considered the procedural fairness of the dismissal, noting that the dismissal process had been conducted in accordance with the legal requirements. Therefore, the application for relief from unfair dismissal was dismissed by the Commission.

The Fair Work Commission ruled that the dismissal of Mr Chilcott was fair, as it complied with the legal requirements and the statutory minimum employment period had not been met. The Commission did not find any procedural unfairness in the dismissal process, thereby upholding the decision of the Shire of Ravensthorpe. This decision concludes that no relief from the dismissal was warranted.

Warwick Chilcott v Shire of Ravensthorpe

DECISION

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Legal Principle Established