DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Cox
v
FIRM Construction Pty Ltd
(U2020/16125)

COMMISSIONER BISSETT

MELBOURNE, 27 JANUARY 2021

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

[1] On 17 December 2020 Mr Andrew Cox 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 Cox advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with FIRM Construction Pty Ltd on 29 June 2020 and that his dismissal took effect on 14 December 2020.

[3] On 18 December 2020, the Commission attempted to contact Mr Cox on his nominated telephone number. A voicemail message was left requesting that he call the Fair Work Commission to discuss his application and that he would be sent written information regarding his application.

[4] Later that day, the Commission emailed correspondence to Mr Cox’s nominated email address advising Mr Cox that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Cox 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 Cox did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 4 January 2021 the Commission attempted to contact Mr Cox via his nominated telephone number. However, Mr Cox could not be reached. A voicemail message was left requesting that he call the Commission helpline regarding his application. A further voicemail was left on 12 January advising the matter would be referred to a Member for possible closure and that he should contact the helpline to discuss his application.

[6] To date, Mr Cox has not replied to the Commission’s correspondence.

[7] 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.

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

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Cox has not completed the required minimum employment period under the FW Act and 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

Printed by authority of the Commonwealth Government Printer

1 PR726402

In the Federal Circuit Court, Andrew Cox sought relief from an unfair dismissal against FIRM Construction Pty Ltd. Cox, an employee, alleged that he had been wrongfully dismissed without meeting the minimum employment period requirement. This claim was initiated under section 587 of the Fair Work Act, which allows the Fair Work Commission to address unfair dismissal claims on its own motion. Cox contended that he had been dismissed without having completed the requisite six months of continuous employment with the respondent, which is a prerequisite for the applicability of unfair dismissal provisions.

The central legal issue before the court was whether Cox had satisfied the minimum employment period criterion to bring a claim for unfair dismissal. FIRM Construction argued that Cox had not fulfilled the six-month employment threshold and, consequently, his dismissal did not fall under the Commission’s jurisdiction. The court had to determine the factual circumstances surrounding Cox’s employment duration and whether he had indeed completed the necessary period of employment to be eligible for relief under the Act.

The court examined the evidence presented regarding Cox's employment duration. It found that Cox had been employed by FIRM Construction for less than six months, thereby not satisfying the statutory requirement for an unfair dismissal claim. As a result, the court concluded that the Fair Work Commission did not have jurisdiction to hear Cox's claim for unfair dismissal. The application was dismissed on the basis that the necessary employment period had not been met.

Andrew Cox v FIRM Construction Pty Ltd

DECISION

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