Denmeade v Express Media Group [2013] FWC 7484 | Case summary | Zoe

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Denmeade v Express Media Group [2013] FWC 7484

[2013] FWC 7484

Fair Work Commission|2013-09-26|Before: Deputy President Gooley, President Gooley

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At a glance

AI case summary

Result

defendant. Application dismissed under s.587(1)(c) of the Fair Work Act 2009

Key principles

A person is protected from unfair dismissal under s.382 of the Fair Work Act 2009 only if they have completed a period of employment of at least the minimum employment period...
The minimum employment period for an employer that is not a small business employer is 6 months ending at the earlier of: (a) the time when the person is given notice of the...
Where an applicant has not completed the required minimum employment period, the application has no reasonable prospects of success.
Pursuant to s.587(1)(c) of the Fair Work Act 2009, the Fair Work Commission may dismiss an application if it has no reasonable prospects of success.

Issues before the court

Whether the applicant had completed the minimum employment period required to be protected from unfair dismissal under s.382 of the Fair Work Act 2009
Whether the application should be dismissed under s.587(1)(c) of the Fair Work Act 2009

Plain English Summary

This case involved an unfair dismissal claim by an employee who had worked for less than six months. The Fair Work Commission dismissed the application because the Fair Work Act 2009 requires employees to complete a minimum employment period of six months (for non-small business employers) before they are protected from unfair dismissal. Since the employee had only worked from February to July 2013—less than six months—he was not eligible to bring an unfair dismissal claim, and the Commission dismissed his application under s.587(1)(c) as having no reasonable prospects of success.

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Judgment (21 paragraphs)

[1]

Denmeade v Express Media Group [2013] FWC 7484 (26 September 2013)

[2]

[2013] FWC 7484

[3]

Fair Work Act 2009_

[4]

s.394 - Unfair dismissal

[5]

[1] On 10 July 2013, Mr Jeff Denmeade made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[6]

[2] Mr Denmeade advised that he commenced employment with Express Media Group T/A EMG on 17 February 2013 and that his dismissal took effect on 5 July 2013.

[7]

[3] On 15 July 2013 and 8 August 2013, correspondence was sent to Mr Denmeade pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Denmeade to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[8]

[4] Mr Denmeade did not reply to that correspondence.

[9]

[5] 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.

[10]

[6] Section 383 of the Act sets out the minimum employment period:

[11]

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

[12]

(i) the time when the person is given notice of the dismissal;

[13]

(b) if the employer is a small business employer - one year ending at that time."

[14]

[7] In the circumstances of this matter, I am satisfied Mr Denmeade has not completed the required minimum employment period and his application has no reasonable prospects of success.

[15]

[8] Section 587(1) of the Act provides:

[16]

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

[17]

(a) the application is not made in accordance with this Act; or

[18]

(b) the application is frivolous or vexatious; or

[19]

(c) the application has no reasonable prospects of success."

[20]

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

[21]

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