Alec Moses v Boral Construction Materials Limited

[2023] FWC 1457

[2023] FWC 1457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alec Moses
v

Boral Construction Materials Limited

(U2023/4333)

COMMISSIONER BISSETT MELBOURNE, 20 JUNE 2023

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

1. On 19 May 2023 Mr Alec Moses 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 Moses advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Boral Construction Materials Limited on 5 December 2022 and that his dismissal took effect on 11 May 2023.

1. On 24 May 2023 the Commission attempted to contact Mr Moses on his nominated telephone number. The call was unsuccessful as an automated message advised that the number was not in service.

1. Later that day the Commission emailed correspondence to Mr Moses’s nominated email address advising Mr Moses that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Moses 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 his application may be dismissed without further notice.  

1. As the required documentation was not received, on 6 June 2023 the Commission emailed Mr Moses on his nominated email address reminding him that to proceed with his application, he needed to show that they had served the minimum employment period. That correspondence also warned Mr Moses that the application could be dismissed if no response was received by 7 June 2023.

1. To date Mr Moses 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. I am satisfied Mr Moses 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. As Mr Moses 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

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