Ashley Game v 3sixty Logistics

[2023] FWC 2936

[2023] FWC 2936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ashley Game

v

3sixty Logistics

(U2023/9278)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 NOVEMBER 2023

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

1. On 25 September 2023, Ashley Game (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 (the Act).

1. The Applicant advised in their Form F2 – Unfair Dismissal Application (Form F2) that they commenced employment with Sky Lodge Frankston (Respondent) at the “Start of June” and that their dismissal took effect on 22 September 2023.

1. On 3 October 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising them that they needed to provide further details as their application was incomplete, that is the Applicant would need to provide both the month and year in which they commenced employment. The correspondence also advised that if the outstanding information was not provided within 14 days, their application might be dismissed. Later that day, correspondence was also sent to the Applicant’s nominated postal address, via express post, as well as an SMS notification to the Applicant’s nominated telephone number, requesting that they contact the Commission.

1. On 6 October 2023, the Commission attempted to contact the Applicant on their nominated telephone number to request the missing details. A voicemail message was left requesting that they call the Commission to provide the required information. On 23 October 2023, as the required information was not received, the Commission again attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting a call back to the Commission by, close of business, 24 October 2023. To date, the Applicant has not provided the necessary details, as requested.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 material before the Commission indicates the Applicant has not completed the required minimum employment period under the FW Act, I am satisfied the 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.

DEPUTY PRESIDENT

[1] PR768126.

Printed by authority of the Commonwealth Government Printer

<PR768125>