Anthony Kelly v Complete Belting Solutions

[2023] FWC 1026

[2023] FWC 1026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Kelly
v

Complete Belting Solutions

(U2023/1554)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 5 MAY 2023

Application for an unfair dismissal remedy

1. On 26 February 2023 Mr Anthony Kelly 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. Mr Kelly advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Complete Belting Solutions on 19 December 2022 and that his dismissal took effect on 9 February 2023.

1. On 28 February 2023 the Commission contacted Mr Kelly on his nominated telephone number and advised him of the minimum employment period required to make an Unfair Dismissal Application. Mr Kelly confirmed that he had worked for the respondent for less than two months but he had been told that the minimum employment period was one week. Mr Kelly was again advised of the minimum employment period and that if he could not provide evidence that he had met the requirement then the application may be dismissed. Mr Kelly was advised that an email would be sent with further information about the minimum employment period and directions for providing additional information or withdrawing the application.

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

1. As the required documentation was not received, on 28 March 2023 the Commission attempted to contact Mr Kelly on his nominated telephone number. However, Mr Kelly could not be reached. A voicemail message was left requesting Mr Kelly contact the Commission in relation to his application.

2. On 5 April 2023, the Commission made a final attempt to contact Mr Kelly on his nominated telephone number. However, Mr Kelly could not be reached. A voicemail message was left requesting he contact the Commission in relation to his application. It mentioned that if no contact was received by close of business on 6 April 2023, the matter may be at risk of being dismissed.

1. To date Mr Kelly 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 Mr Kelly 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. As Mr Kelly 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.

DEPUTY PRESIDENT

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