Callem Newall v Amazon State Pty Ltd
[2023] FWC 2767
•23 OCTOBER 2023
| [2023] FWC 2767 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Callem Newall
v
Amazon State Pty Ltd
(U2023/8046)
| COMMISSIONER BISSETT | MELBOURNE, 23 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 25 August 2023 Mr Callem Newall 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).
Mr Newall advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Amazon State Pty Ltd on 14 March 2023 and that his dismissal took effect on 25 August 2023.
On 30 August 2023 the Commission sent correspondence to Mr Newall’s nominated email address advising that on the basis of the material provided by him, he did not the meet the minimum employment period. An SMS notification was also sent to Mr Newall’s nominated telephone number asking him to contact the Commission.
On 7 September 2023 the Commission attempted to contact Mr Newall on his nominated telephone number, however the call was not answered. A voicemail message was left asking him to contact the Commission.
On 19 September 2023 Mr Newall telephoned the Commission and advised that he wished to continue with his application until he sought legal advice, despite being informed that on the material provided in his Form F2 he did not satisfy the minimum employment period.
On 28 September 2023 the Commission attempted to contact Mr Newall on his nominated telephone number to confirm whether he wished to continue with his application. The call was not answered, and a voicemail message was left asking Mr Newall to contact the Commission.
The file was then referred to me to determine.
On 12 October 2023 my chambers sent correspondence to Mr Newall advising that it is my preliminary view that his application should be dismissed as he does not satisfy the minimum employment period required to be eligible to make an application for unfair dismissal. He was advised that that he must file submissions as to why his matter should not be dismissed by 4.00 pm 19 October 2023 and should he fail to reply, his application may be dismissed without further correspondence.
No submissions or further correspondence has been received from Mr Newall.
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 Newall has not completed the required minimum employment period.
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 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.
In the circumstances before me, I am not satisfied that Mr Newall has completed the minimum employment period. His application cannot succeed and, for this reason, I have determined to dismiss the application pursuant to s.587(1)(c) of the FW Act.
COMMISSIONER
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