Aniello Bortone v Sycamore Group T/A Curva
[2022] FWC 583
| [2022] FWC 583 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aniello Bortone
v
Sycamore Group T/A Curva
(U2022/2065)
| cOMMISSIONER bISSETT | melbourne, 16 MARCH 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 16 February 2022, Mr Aniello Bortone (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).
The Applicant advised in the Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Sycamore Group T/A Curva on 27 December 2021 and that his dismissal took effect on 1 February 2022.
On 17 February 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call and there was no provision to leave a voicemail message.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant 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 and 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.
On 1 March 2022 the Commission telephoned the Applicant. The Applicant confirmed that he had received correspondence from the Commission regarding his application and said he was unsure “which employer he should base the 6 month minimum employment period on as a new employer came online when he was on leave.” The Commission suggested the Applicant seek legal advice and advised that if he did not contact the Commission within 7 days his application may be dismissed.
To date, the Applicant has not provided the requested information.
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.
In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.
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 prospects of success.
Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, her 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
<PR739352>
[1] PR739353
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