Christopher Thomas Moore v Direct Freight Express

[2023] FWC 1386

[2023] FWC 1386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Thomas Moore
v

Direct Freight Express

(U2023/3195)

COMMISSIONER BISSETT MELBOURNE, 15 JUNE 2023

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

1. On 13 April 2023 Mr Christopher Thomas Moore 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 Moore advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Direct Freight Express on 25 January 2023 and that his dismissal took effect on 13 April 2023.

1. On 5 May 2023 the Commission attempted to contact Mr Moore on his nominated telephone number. A voicemail message was left advising Mr Moore that he had not served the minimum employment period.

1. On 15 May 2023, the Commission emailed correspondence to Mr Moore’s nominated email address advising Mr Moore that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Moore to file any documents or other evidence to support their 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 Moore’s nominated telephone number requesting that they contact the Commission.

1. On 19 May 2023, the Commission attempted to contact Mr Moore on his nominated telephone number. The call was not answered and there was no facility allowing a voicemail to be left.

1. As the required documentation was not received, on 1 June 2023 the Commission attempted to contact Mr Moore on his nominated telephone number. The call was not answered and there was no facility allowing a voicemail to be left.

1. On 2 June 2023, the Commission attempted to contact Mr Moore on his nominated telephone number. The call was not answered and there was no facility allowing a voicemail to be left.

1. On 7 June 2023, the Commission attempted to contact Mr Moore on his nominated telephone number. The call was not answered, and a voicemail message was left advising Mr Moore that he had not served the minimum employment period. The voice message requested Mr Moore to advise the Commission by 8 June 2023 on whether he wished to continue with the application despite not meeting the minimum employment period. Mr Moore was also advised that if the Commission does not receive a response by 8 June 2023 then the matter will be dismissed.

1. To date Mr Moore 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 Moore 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 Moore 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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