Abdur Desai v National Australia Bank Limited

[2023] FWC 1630

[2023] FWC 1630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Abdur Desai
v

National Australia Bank Limited

(U2023/5139)

COMMISSIONER BISSETT MELBOURNE, 6 JULY 2023

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

1. On 9 June 2023 Mr Abdur Desai 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 Desai advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with National Australia Bank Limited (Respondent) on 6 December 2022 and that he was notified of his dismissal on 22 May 2023. Mr Desai attached to his application a termination of employment letter issued to him by the Respondent on 22 May 2023 which advised him that his employment was terminated with immediate effect.

1. On 14 June 2023, the Commission attempted to contact Mr Desai on his nominated telephone number. A voicemail message was left advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period and requested that he contact the Commission.

1. Later that day the Commission emailed Mr Desai’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 Desai to file any documents 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. Later that day, the Mr Desai sent a number of emails to the Commission which indicated that, inter alia, his employment ended before he had completed the necessary 6-month probation period for his role and that his employment was terminated on 22 May 2023 with immediate effect. As Mr Desai’s dismissal took effect on 22 May 2023, Mr Desai had not met the necessary minimum employment period.

1. As the documentation received did not support the claim that Mr Desai had served the minimum employment period, on 26 June 2023 the Commission attempted to contact Mr Desai on his nominated telephone number. However, Mr Desai could not be reached. A voicemail message was left advising that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The Commission requested that Mr Desai contact the Commission back.

1. On 4 July 2023, Mr Desai called the Commission stating that no clear dismissal date had been provided despite the Applicant asserting in previous correspondence received on 14 June 2023 that he had not successfully completed the probationary period of 6 months and that his dismissal took effect on 22 May 2023. His claim is also contrary to the termination of employment letter issued to him by the Respondent on 22 May 2023. In considering the documentary evidence and Mr Desai’s claim that he was given no clear dismissal date I prefer the documentary evidence. Mr Desai has been given the opportunity to provide clear evidence in support of his claim that he has completed the minimum employment period but has not done so.

1. 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 Desai has not completed the required 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 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.

1. The facts and the circumstances in this case do not allow me to conclude that Mr Desai has completed the required minimum employment period under the FW Act. I do not accept his claim that no clear termination date was given to him in circumstances where he has provided his termination of employment letter to the Commission. I am therefore satisfied that the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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