William Roberts v Compass Group B & I Hospitality Services

[2022] FWC 1055

[2022] FWC 1055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

William Roberts
v

Compass Group B & I Hospitality Services

(U2022/3595)

COMMISSIONER BISSETT MELBOURNE, 6 MAY 2022

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

1. On 25 March 2022 Mr William Roberts 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. Mr Roberts advised in the Form F2 Unfair Dismissal Application that he commenced employment with Compass Group B & I Hospitality Services (the Respondent) on 14 February 2022 and that his dismissal took effect on 10 March 2022.

1. On 28 March 2022 the Commission attempted to contact Mr Roberts on his nominated telephone number. A voicemail message was left informing Mr Roberts that he may not have met the minimum employment period, requesting that he contact the Commission.

1. Later that day, the Commission emailed correspondence to Mr Roberts’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Roberts to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Roberts did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As the required documentation was not received, on 22 April 2022 the Commission attempted to contact Mr Roberts via telephone. However, Mr Roberts could not be reached. A voicemail message was left requesting that Mr Roberts contact the Commission in relation to the minimum employment period.

1. To date, Mr Roberts has not replied to the Commission’s correspondence.

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. 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 prospect of success.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Roberts 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] PR741303.

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<PR741302>