Chadol Youn v Azit Group Pty Ltd

[2020] FWC 3666

[2020] FWC 3666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chadol Youn
v
Azit Group Pty Ltd
(U2020/8495)

COMMISSIONER BISSETT MELBOURNE, 16 JULY 2020

Application for an unfair dismissal remedy.

[1] On 19 June 2020 Mr Chadol Youn 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] Mr Youn advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Azit Group Pty Ltd on 20 April 2020 and that his dismissal took effect on 16 June 2020.

[3] On 22 June 2020 the Commission attempted to contact Mr Youn on his nominated telephone number. A detailed voicemail message was left requesting a return call as, based on the information provided in the Form F2, he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Youn’s nominated email address advising Mr Youn that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Youn to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Youn did not contact the Commission within 14 days, his application may be dismissed without further notice. An SMS notification was also sent to Mr Youn’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 6 July 2020 the Commission made multiple attempts to contact Mr Youn on his nominated telephone number. However, Mr Youn could not be reached. A voicemail message could not be left as the telephone line automatically disconnected. Later that day, the Commission emailed correspondence to Mr Youn advising that his application may be at risk of being dismissed, and a decision may be published on the FWC website. The email explained that if he had not served the minimum employment period of 6 months, he is not eligible to lodge an Unfair Dismissal application.

[6] The Commission again attempted to contact Mr Youn on 7 July 2020 on his nominated telephone number, there was no answer and a detailed voicemail message was left requesting he call the Commission and advise on how to proceed with the application.

[7] To date, Mr Youn has not replied to the Commission’s correspondence.

[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[9] 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.

[10] 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 prospects of success.

[11] In the circumstances of this matter, I am satisfied Mr Youn has not completed the required minimum employment period.

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Youn has not completed the required minimum employment period under the FW Act, his 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.

COMMISSIONER

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