DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Cvetkovski
v
Little Gem Landscape T/A Little Gem Landscape
(U2020/14064)

COMMISSIONER BISSETT

MELBOURNE, 19 NOVEMBER 2020

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

[1] On 25 October 2020, Mr Christopher Cvetkovski 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 Cvetkovski advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Little Gem Landscape T/A Little Gem Landscape on 6 October 2020 and that his dismissal took effect on 19 October 2020.

[3] On 26 October 2020, the Commission attempted to contact Mr Cvetkovski on his nominated telephone number. A voicemail message was left requesting Mr Cvetkovski telephone the Commission regarding his application.

[4] Later that day, the Commission emailed correspondence to Mr Cvetkovski’s nominated email address advising Mr Cvetkovski that based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Cvetkovski 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 Cvetkovski did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Cvetkovski’s nominated telephone number, requesting that he contact the Commission.

[5] Later that same day, Mr Cvetkovski contacted the Commission by telephone and advised that his employment start date was 6 October 2020. Mr Cvetkovski advised that he would read the correspondence sent by the Commission regarding the qualifying period and send a notice of discontinuance by email.

[6] As the notice of discontinuance was not received, on 9 November 2020 the Commission attempted to contact Mr Cvetkovski via his nominated telephone number. However, Mr Cvetkovski could not be reached. A voicemail message was left requesting him to contact the Commission.
[7] To date, Mr Cvetkovski 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] In the circumstances of this matter, I am satisfied Mr Cvetkovski has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.

[11] 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

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Cvetkovski 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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In the case of Christopher Cvetkovski v Little Gem Landscape T/A Little Gem Landscape, the applicant, Mr. Cvetkovski, sought relief from an unfair dismissal after being terminated by his employer, Little Gem Landscape. The application was made to the Fair Work Commission, which was required to determine if the dismissal was indeed unfair and whether the applicant had completed the requisite minimum employment period to be eligible for such relief. The crux of the dispute was whether Mr. Cvetkovski had been unfairly dismissed and if he had fulfilled the necessary employment duration to be entitled to relief.

The key legal issues before the Commission included the interpretation and application of the unfair dismissal provisions under the Fair Work Act 2009. Specifically, the Commission needed to ascertain if Mr. Cvetkovski's dismissal was justified and whether he had been employed for a minimum period of six months, as required by the Act, to be eligible for relief from an unfair dismissal. Additionally, the Commission had to consider whether the dismissal was initiated by the Commission itself, as per section 587 of the Act.

The Fair Work Commission, in its ruling, found that Mr. Cvetkovski had not been employed for the requisite six-month period to be eligible for relief from an unfair dismissal. Consequently, the Commission concluded that Mr. Cvetkovski was not entitled to relief from the dismissal. The Commission's decision was based on the evidence presented regarding the duration of Mr. Cvetkovski's employment and the circumstances surrounding his termination. The Commission determined that the dismissal was not unfair, and as such, Mr. Cvetkovski did not meet the criteria for relief under the Act.

Christopher Cvetkovski v Little Gem Landscape T/A Little Gem Landscape

DECISION

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