Andrew Kovac v Mateus Zeotti Frazon

[2023] FWC 1685

[2023] FWC 1685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Kovac
v

Mateus Zeotti Frazon

(U2023/4092)

COMMISSIONER BISSETT MELBOURNE, 13 JULY 2023

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

1. On 14 May 2023 Andrew Kovac (the Applicant) 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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Mateus Zeotti Frazon on 30 January 2023 and that his dismissal took effect on 9 May 2023.

1. On 16 May 2023, the Commission attempted to contact the Applicant on his nominated telephone numbers. The first number provided could not be reached and no facility for a voicemail was available. The Commission attempted to contact the Applicant on the second number provided. As the Applicant could not be reached, a voice message was left requesting the Applicant contact the Commission as the information provided in his application suggested that he may not have met the minimum employment period. This voice message also advised the Applicant to refer to the emailed correspondence which would be sent to him shortly for more information.

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

1. On 17 May 2023, the Applicant emailed the Commission in reply to the correspondence sent by the Commission on 16 May 2023. Although the Applicant stated in this email that the Respondent had more than 20 employees, this did not address the minimum employment issue.

1. On 24 May 2023, the Commission attempted to contact the Applicant again on his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call the Commission and that the application was at risk of being dismissed as the employment did not meet the minimum employment period.

1. On 26 June 2023, the Commission made a final attempt to contact the Applicant on his nominated telephone number. A voicemail was left advising the Applicant that the application was at risk of being dismissed as his employment does not meet the minimum employment period. The Commission requested that the Applicant contact the Commission urgently to discuss the application.

1. To date the Applicant 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 the Applicant 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 the Applicant 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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