Bhakta Kumar Dev Giri v Bodega Underground t/a Bodega

[2019] FWC 7316

[2019] FWC 7316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bhakta Kumar Dev Giri
v
Bodega Underground t/a Bodega
(U2019/9887)

DEPUTY PRESIDENT MANSINI MELBOURNE, 1 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Mr Giri (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application has no reasonable prospects of success because it was not made in accordance with the Act and the Applicant has not met the minimum employment period. Accordingly, the application is dismissed. The reasons for this decision follow.

Context

[3] The application was filed on 3 September 2019. It did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the Act.

[4] The application alleges that the Applicant commenced employment with Bodega (the Respondent) on 24 June 2019 and was dismissed effective 19 August 2019.

[5] The matter did not proceed to conciliation conference as the Applicant was not able to be reached regarding his incomplete application.

[6] The Commission attempted to contact the Applicant regarding the requirement to pay or seek waiver of the filing fee and the minimum employment period on seven separate occasions, as follows:

a) At 1:57pm on 4 September 2019, by telephone to the Applicant’s nominated mobile telephone number;

b) At 2:01pm on 4 September 2019, by email and post to the Applicant’s nominated addresses. That correspondence included directions for the Applicant to file in the Commission, within 14 days, any documents or evidence to support his claim of having served the minimum employment period. The correspondence also requested the Applicant pay the filing fee or otherwise apply to have the fee waived and an application for fee waiver was provided. The correspondence advised that in the absence of Mr Giri contacting the Commission within 14 days, his application may be dismissed;

c) At 3:01pm on 18 September 2019, by telephone to the Applicant’s nominated mobile telephone number. A voicemail message was left requesting the Applicant urgently return the call;

d) At 3:26pm on 30 September 2019, by telephone to the Applicant’s nominated mobile telephone number. A voicemail message was left requesting a return call;

e) At 1:33pm on 8 October 2019, by telephone to both of the Applicant’s nominated mobile telephone numbers (there was no option to leave a voicemail message);

f) At 1:37pm on 8 October 2019, by email to the Applicant’s nominated email address, which advised that unless the Applicant contacted Commission within 7 days, the application will be determined on the material currently before the Commission;

g) At 2:50pm on 22 October 2019, by telephone to the Applicant’s nominated mobile telephone number. A voicemail message was left.

[7] As at the date of this decision, the Applicant: has not paid the required fee; has not filed any material with the Commission; and has not responded to the Commission’s numerous attempts to contact him.

Statutory context

[8] An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the application is not made in accordance with the Act or the application has no reasonable prospects of success (s.587(1)(a) and (c)).

[9] To be made in accordance with the Act, the application must be accompanied by any fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) (s.395). The Regulations in turn provide a method for calculating the fee or if the Commission is satisfied (upon receipt of a waiver form) that the person making an application will suffer serious hardship if required to pay the application fee, no fee is payable.

[10] For the application to succeed, the Commission must have jurisdiction. Relevant to this application, the Commission can only order an unfair dismissal remedy if the applicant is a person “protected from unfair dismissal” (s.390) including because the person has completed a period of continuous service that is at least the “minimum period of employment” (ss.382(a) and 384(1)). If an employer is not “a small business employer” (employing less than 15 employees at the time of dismissal), the minimum employment period is six months ending at the earlier of:

a) the time when the person is given notice of the dismissal; or

b) immediately before the dismissal

(s.383).

[11] The power to dismiss an application under s.587(1)(a) and/or (c) is discretionary and may be exercised on application or on the Commission’s own initiative (s.587(3)).

[12] Procedurally, the Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

Consideration and conclusion

[13] The Applicant has not completed his application because he has not filed the application fee or waiver form, and not responded to numerous attempts made by the Commission to contact him in an effort to rectify these issues.

[14] Further, on the materials that the Applicant included in his incomplete application, he has not served the minimum employment period. The Applicant has not provided any material or explanation in response to Commission’s requests for further information in this regard.

[15] In these circumstances, I am satisfied that:

a) as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act; and

b) the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

[16] As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An order (PR713619) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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