William Birdsey v Better Pools and Spas

[2017] FWC 4448

[2017] FWC 4448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

William Birdsey

v

Better Pools and Spas

(U2017/7589)

Deputy President Clancy MELBOURNE, 29 AUGUST 2017

Application for an unfair dismissal remedy.

1. On 13 July 2017, Mr William Birdsey made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Birdsey advised that he commenced employment with Better Pools and Spas on 14 March 2017 and that his dismissal took effect on 7 July 2017.

1. On 14 July 2017, the Fair Work Commission (the Commission) telephoned Mr Birdsey to advise him of the minimum employment period requirement under the Act. In this telephone conversation, Mr Birdsey was also provided with contact details for the Fair Work Ombudsman (the FWO). On the same day, correspondence was sent to Mr Birdsey confirming that based on the information contained in the application, it appeared he had not served the minimum employment period. The correspondence required Mr Birdsey to file in the Commission any documents or evidence to support his claim of having served the minimum employment period within 14 days. Mr Birdsey was advised in the absence of any material being received, his application may be dismissed.

1. On 18 July 2017, the Commission telephoned Mr Birdsey to advise that a duplicate application had been received through the Commission’s Online Lodgment Service (OLS). Mr Birdsey was subsequently provided information as to discontinuing applications by way of filing a Form F50 – Notice of Discontinuance.

1. On 9 August 2017, a further telephone call was made to Mr Birdsey who advised that he had contacted the FWO but was unsure as to the status of his application and did not intend to discontinue it. Mr Birdsey was given an additional seven days to provide an explanation of why he did not respond to the direction contained in the correspondence of 14 July 2017.  Mr Birdsey was advised that if there was no response, his application would be determined on the material currently before the Commission. Mr Birdsey stated he understood that if he did not provide any supporting material his application may be dismissed, however he wished for the matter to remain open for as long as possible.

1. To date, Mr Birdsey has not provided any material to the Commission.

1. 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.

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 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. In the circumstances of this matter, I am satisfied Mr Birdsey has not completed the required minimum employment period and his application has no reasonable prospects of success.  Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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