Andrew Edwards v Giorgio Linguanti
[2022] FWC 646
| [2022] FWC 646 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Andrew Edwards
v
Giorgio Linguanti
(U2022/2695)
| COMMISSIONER BISSETT | MELBOURNE, 24 MARCH 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 3 March 2022 Mr Andrew Edwards made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).
Mr Edwards advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Giorgio Linguanti in September 2021 and that his dismissal took effect on 1 March 2022.
On 3 March 2022 the Commission attempted to contact Mr Edwards on his nominated telephone number. The call was not answered. A voicemail message was left requesting Mr Edwards contact the Commission as it appeared from the dates provided on the Form F2 that the applicant may not have served the minimum employment period.
Later that day, the Commission emailed correspondence to Mr Edwards’ nominated email address advising Mr Edwards that based on the information provided in the Form F2, he may not have served the minimum employment period. The correspondence directed Mr Edwards 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 Edwards did not contact the Commission within 14 days, the application may be dismissed without further notice.
As the required documentation was not received, on 16 March 2022, the Commission attempted to contact Mr Edwards via telephone. However, the phone call was unanswered. A voicemail message was left advising the dates of employment provided on his Form F2 application indicate Mr Edwards may not have served the minimum employment period. The Commission requested Mr Edwards to contact the Commission by 5pm on Friday 18 March 2022, otherwise the application may be dismissed by a Member of the Commission.
Had Mr Edward commenced employment on 1 September 2021 he would have satisfied the minimum employment period. However, despite several attempts to have him provide evidence of his commencement date he has not responded to the Commission. In these circumstances I am satisfied that he has not served the necessary minimum employment period.
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.
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.
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 prospect of success.
Having regard to the circumstances of this matter I am satisfied that as Mr Edwards has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. I am also satisfied that Mr Edwards has failed to prosecute his application by not responding to the correspondence of the Commission. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order[1] to this effect will be issued with this decision.
COMMISSIONER
[1] PR739632.
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