Christian Nebbia v Evolving Support Services Pty Ltd

[2024] FWC 1592

[2024] FWC 1592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christian Nebbia
v

Evolving Support Services Pty Ltd

(U2024/4837)

DEPUTY PRESIDENT EASTON SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

1. Mr Christian Nebbia was employed by Evolving Support Services Pty Ltd until he was dismissed. On 25 April 2024, Mr Nebbia made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. Mr Nebbia advised in the Form F2 Unfair Dismissal Application that he commenced employment with Evolving Support Services on 17 October 2023, that he was notified of his dismissal on 16 April 2024 and that it took effect on 23 April 2024.

1. On the information provided by Mr Nebbia, he worked for Evolving Support Services for 5 months, 4 weeks and 2 days or 6 months and 6 days.

1. A person can only make an unfair dismissal application if they completed the minimum period of employment before they were dismissed – per s.382 and s.383 of the Act. For employees of small business employers (see s.23 of the Act) the minimum employment period is 12 months. For other employees the minimum employment period is 6 months. Section 383 of the Act defines the minimum employment period:

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. Commission staff sought further information from Mr Nebbia about whether he had served the minimum employment period:

(a)On 3 May 2024 Commission staff attempted to call Mr Nebbia. A voicemail message was left asking him to call the Commission to discuss the minimum employment period. 

(b)Later that day Commission staff emailed Mr Nebbia advising him that on the basis of the information provided in the Form F2, he may not have served the minimum employment period. The email asked Mr Nebbia to file any documents/evidence to support his claim that he had served the required minimum employment period. The email 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 Nebbia asking that he contact the Commission.

(c)On 3 May 2024, Mr Nebbia called the Commission. Commission staff advised Mr Nebbia that he may not meet the Minimum Employment Period and advised Mr Nebbia to seek legal advice to confirm his eligibility to make the application. Mr Nebbia was provided information about obtaining legal advice.

(d)On 17 May 2024 Commission staff attempted to call Mr Nebbia. However, he could not be reached. A voicemail message was left requesting that he urgently contact the Commission.

1. On 19 June 2024 my Chambers emailed Mr Nebbia and he was required to respond by 5:00pm on 25 June 2024. Mr Nebbia was also advised that his application may be dismissed without further notice if he did not respond. An SMS was sent to Mr Nebbia telling him that an important email had been sent. Mr Nebbia did not respond to this correspondence.

1. To date Mr Nebbia has not replied to the Commission’s correspondence confirming if he received legal advice and if he believed he had served the minimum employment period.

1. Section 587 of the Act provides:

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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Nebbia’s application.

1. Mr Nebbia has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

1. For these reasons I have decided to dismiss Mr Nebbia’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR776157).

DEPUTY PRESIDENT

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