Attila Jonas v Unknown

[2021] FWC 6637

[2021] FWC 6637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Attila Jonas
v
Unknown
(U2021/10680)

COMMISSIONER BISSETT MELBOURNE, 20 DECEMBER 2021

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

[1] On 23 November 2021 Dr Attila Jonas 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).

[2] Dr Jonas:

•  did not complete the Respondent section on the Form F2 Unfair Dismissal Application (Form F2) (although the email to which their application was attached suggested they had been dismissed by Bathurst Hospital);

•  Submitted an incomplete fee waiver application form (Form F80);

•  Advised in the Form F2 that they commenced employment with the Respondent on 12 July 2021 and that the dismissal took effect on 27 September 2021 (that is, was employed for a period of just over 2 months).

[3] On 23 November 2021 the Commission attempted to contact Dr Jonas on the nominated telephone number on the Form F2. A voicemail message was left requesting that they contact the Commission to discuss the minimum employment period for the application and provide the missing information.

[4] Later that day, the Commission emailed correspondence to Dr Jonas’ nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence also advised them that the Respondent section on the Form F2 Unfair Dismissal Application (Form F2) was incomplete. and that question four on the Form F80 was incomplete. The correspondence directed Dr Jonas to file any documents/evidence to support their claim that they had served the required minimum employment period and to complete the respondent section and question four on the fee waiver form. That correspondence also warned that if Dr Jonas did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] Later that day, Dr Jonas emailed correspondence to the Commission advising that they are on unpaid sick leave until January 2022 and they had not been dismissed in writing, but were suspended from the practice. Dr Jones advised “I think I am going to wait until the end of my sick leave period (which is the end of my 6 months of employment) and contact you again.”

[6] On Thursday 25 November 2021 the Commission attempted to contact Dr Jonas on their nominated telephone number. A voicemail message was left requesting that they call the Commission to clarify their intentions with the application.

[7] On Friday 3 December 2021 the Commission again attempted to contact Dr Jonas on their nominated telephone number. A voicemail was left advising that there were several issues outstanding with the application and the deadline to provide the information was 7 December 2021, and if the details were not provided by this date, the matter may be dismissed. The Commission requested Dr Jonas contact the Commission as soon as possible.

[8] On Tuesday 7 December 2021 the Commission emailed correspondence to Dr Jonas’ nominated email address. The correspondence outlined the several outstanding issues with the application making it incomplete. The correspondence requested that Dr Jonas contact the Commission to advise how they would like to proceed and provided options as to how to discontinue the matter.

[9] Later that day, Dr Jonas emailed correspondence to the Commission acknowledging that they would not meet the minimum employment period until 12January 2022 and until that date they would remain on unpaid sick leave. They advised that once that date passes, they will resume the application.

[10] On Thursday 9 December 2021 the Commission attempted to contact Dr Jonas on their nominated telephone number to clarify their intentions with the application and explain the process of discontinuing the application, and that once discontinued it cannot be resumed later. Instead, a new application would need to be lodged. The Commission was unable to reach Dr Jonas and no voicemail message was left because the deadline to for providing the additional information had already passed.

[11] To date, Dr Jonas has not contacted the Commission in relation to the issues raised.

[12] There are multiple issues with the application from Dr Jonas including advice that they have not been dismissed from their employment but rather stood down.

[13] A person who has been dismissed from their employment is eligible to make an application seeking a remedy for unfair dismissal. The meaning of dismissal is set out in s.386 of the FW Act. Based on the advice provided to the Commission by Dr Jonas they have not been dismissed from employment. Dr Jonas is therefore not eligible to make an application seeking remedy for unfair dismissal.

[14] Even if Dr Jonas had been dismissed at the time they made the application for a remedy for unfair dismissal they have not served the minimum employment period necessary to make the application (see s.383 of the FW Act) and the application has not been made in accordance with he FW Act in the application fee has not been paid and neither has a completed fee waiver application been submitted.

[15] 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.

[16] Having regard to the circumstances of this matter I am satisfied that as Dr Jonas is not eligible to make an application for remedy from unfair dismissal and further has not completed the required minimum employment period under the FW Act. For these reasons set out above the application has no reasonable prospect of success. The application was also not made in accordance with the FW Act as it remains unpaid and several details are missing from the application. As such, the application is dismissed under s.587(1)(a) s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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