Alfred Nasslander v Cairns & District Aboriginal & Torres Strait Islanders Corpo

[2020] FWC 6325

[2020] FWC 6325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alfred Nasslander
v
Cairns & District Aboriginal & Torres Strait Islanders Corpo
(U2020/14439)

COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2020

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

[1] On 4 November 2020 Mr Alfred Nasslander 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). The application was submitted on behalf of Mr Nasslander by Employee Dismissal Claims.

[2] Mr Nasslander advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Cairns & District Aboriginal & Torres Strait Islanders Corpo on 4 September 2020 and that his dismissal took effect on 13 October 2020.

[3] On 5 November 2020, the Commission attempted to contact Mr Nasslander’s representative on their nominated telephone number. A voicemail message was left requesting they call back to confirm dates of employment and to pay the filing fee.

[4] Later that day, the Commission emailed correspondence to Mr Nasslander and his representative’s nominated email address advising that based on the information provided in the Form F2, Mr Nasslander had not served the minimum employment period. The correspondence directed Mr Nasslander 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 Nasslander did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Nasslander’s nominated telephone number, requesting that he contact the Commission.

[5] On 13 November 2020 Mr Nasslander’s representative called the Commission and was informed that based on the information provided in the form F2 that Mr Nasslander did not meet the minimum employment period. The representative advised the Commission that they will investigate and contact the Commission in due course.

[6] As neither the required documentation was received or phone contact made, on 17 November 2020 the Commission attempted to contact Mr Nasslander via his nominated telephone number. However, Mr Nasslander could not be reached. A voicemail message was left advising that his application was at risk of being dismissed and to contact Fair Work Commission. The Commission also attempted to contact Mr Nasslander’s representative and they could not be reached. A voicemail message was left advising that the application is at risk of being dismissed and to contact Fair Work Commission

[7] On 18 November 2020 Mr Nasslander’s representative contacted the Commission to confirm status of matter. The representative advised that they are clarifying the employment dates and will notify the Commission.

[8] To date, neither Mr Nasslander nor his representative have replied to the Commission’s correspondence.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Mr Nasslander has not completed the required minimum employment period and his application has no reasonable prospects of success. It is astounding that the Applicant’s representative – Employee Dismissal Claims – allowed the application to be made in circumstances where, on the information provided on the Form F2, the Applicant is not eligible to make such a claim. It would be expected that an organisation that purports to represent applicants in unfair dismissal matters is not cognisant of the basic requirements necessary to make a valid claim.

[11] 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.

[12] 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 prospects of success.

[13] Having regard to the circumstances of this matter I am satisfied that as Mr Nasslander 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

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