Alistair Grayling v Norland Construction [2023] FWC 652

1 Fair Work Act 2009 s.394—Unfair dismissal Alistair Grayling v Norland Construction (U2023/1227) COMMISSIONER BISSETT MELBOURNE, 20 MARCH 2023 Application for an unfair dismissal remedy [1] On 16 February 2023 Mr Alistair Grayling 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] Mr Grayling advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Norland Construction on 15 September 2022 and that he was notified of his dismissal on 5 February 2023. [3] On 17 February 2023 the Commission attempted to contact Mr Grayling on his nominated telephone number. A voicemail message was left requesting Mr Grayling to contact the Commission helpline to discuss the minimum employment period. The Commission advised Mr Grayling that he had not served the minimum employment period and options to discontinue the application or alternative applications such as a General Protections application involving dismissal. [4] Later that day the Commission sent correspondence to Mr Grayling’s nominated email address advising Mr Grayling that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Grayling to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Mr Grayling’s nominated telephone number requesting that he contact the Commission. [5] As the required documentation was not received, on 28 February 202 the Commission attempted to contact Mr Grayling on his nominated telephone number. However, Mr Grayling could not be reached. A voicemail message was left requesting that Mr Grayling contact the Commission helpline to discuss not meeting the minimum employment period and respond to the email sent on 17 February 2023 by no later than 3 February 2023. [2023] FWC 652 DECISION -- 1 of 3 -- [2023] FWC 652 2 [6] On 2 February 2023, Mr Grayling sent a reply via email confirming that he commenced employment on 15 September 2022 and that he ceased employment on 3 February 2023. The information provided indicated that he did not meet the minimum employment period. [7] A further attempt to contact Mr Grayling was made on 2 March to explain the required minimum employment period. However, Mr Grayling could not be reached. A voicemail message was left requesting that Mr Grayling contact the Commission helpline to discuss not meeting the minimum employment period. [8] On 8 March 2023, Mr Grayling emailed correspondence to the Commission to demonstrate that as per his enterprise agreement he had passed his probationary period of 3 months with his employer. [9] On 9 March 2023, an attempt to contact Mr Grayling via his nominated telephone number to discuss the correspondence that he had sent to the Commission. A voicemail message was left advising that the minimum employment period as stipulated by the FW Act is different to that of a probationary period cited in his enterprise agreement. The voicemail further requested to contact the Commission, and the contact number was provided. [10] On 10 March 2023 Mr Grayling emailed correspondence to the Commission asking that the Commission call him in relation to the voicemail left on 9 March 2023. The Commission attempted to call Mr Grayling again that afternoon but there was no answer and a voicemail message was not left. [11] No further correspondence has been received from Mr Grayling. [12] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Grayling has not completed the required minimum employment period. While Mr Grayling may have completed a probationary period set by his employer, to make an application to the Commission for unfair dismissal it is necessary, by virtue of s.383 of the FW Act, that he has completed at least 6 months employment (or 12 months if his employer is a small business). [13] 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. -- 2 of 3 -- [2023] FWC 652 3 [14] Section 587(1) of the FW Act provides as follows: 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. [15] As Mr Grayling has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR760404> -- 3 of 3 --