Christian Gargaro v Tesla Motors Australia, Pty Ltd

[2023] FWC 1785

[2023] FWC 1785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christian Gargaro
v

Tesla Motors Australia, Pty Ltd

(U2023/4776)

COMMISSIONER BISSETT MELBOURNE, 25 JULY 2023

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

1. On 31 May 2023 Mr Christian Gargaro 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).

1. Mr Gargaro advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Tesla Motors Australia, Pty Ltd on 29 November 2022 and that his dismissal took effect on 18 May 2023.

1. Prior to the application proceeding to conciliation, it was identified that Mr Gargaro’s employment had not met the minimum employment period. As a result of this, on 20 June 2023 the Commission attempted to contact Mr Gargaro on his nominated telephone number. The call was not answered. A voicemail message was left requesting that Mr Gargaro contact the Commission to confirm the dates of his employment and advised that his employment may not meet the minimum employment period.

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

1. As the required documentation was not received, on 12 July 2023 the Commission attempted to contact Mr Gargaro on his nominated telephone number. However, Mr Gargaro could not be reached. A voicemail message was left requesting that Mr Gargaro contact the Commission in reference to the correspondence sent to Mr Gargaro about the minimum employment period by the 16 July 2023. In this voicemail message, Mr Gargaro was also warned that a failure to contact the Commission may result in the dismissal of his application.

1. To date Mr Gargaro has not replied to the Commission’s correspondence.

1. 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 Gargaro has not completed the required minimum employment period.

1. 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 Mr Gargaro has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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