Corey Michal v M Maintenance Services Pty Ltd

[2021] FWC 3648

[2021] FWC 3648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Corey Michal
v
M Maintenance Services Pty Ltd
(U2021/5316)

COMMISSIONER BISSETT MELBOURNE, 25 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 17 June 2021 Mr Corey Michal (the Applicant) 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). Mr Michal stated he had been unfairly dismissed by M Maintenance Services Pty Ltd (the Respondent).

[2] Mr Michal advised in his unfair dismissal application (Form F2) that he commenced employment with the Respondent on 20 December 2020 and that his dismissal took effect on 16 June 2021.

[3] On 18 June 2021 the Commission contacted Mr Michal on his nominated telephone number. The Commission informed Mr Michal that based on the information provided on the Form F2, it appeared he had not served the minimum employment period. Mr Michal advised the dates of employment on his application were correct. Later that day, the Commission emailed correspondence to Mr Michal’s nominated email address informing 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 Michal to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Michal did not contact the Commission within 14 days the application may be dismissed without further notice.

[4] Mr Michal responded to the email later that day. Mr Michal advised the Commission that:

“I believe my 3 days short 6 months should be looked at due to fact i will be paid again this wednesday which covers the 3 days”

[5] On 21 June 2021 the application was referred to me for consideration as National Practice Leader for Unfair Dismissals. Later that day, my chambers emailed correspondence to Mr Michal:

“Your application for unfair dismissal has been allocated to Commissioner Bissett, National Practice Leader.

The Commissioner understands that you have been contacted by staff of the Commission who suggested that, on the information provided by you in your application form, you have not been employed by M Maintenance Services for at least 6 months.

The Fair Work Act 2009 says that, to be eligible to make an application for unfair dismissal you must have completed at least 6 months employment (or 12 months employment [if] the employer is a small business).

Because of the information provided on your application form it is the Commissioner’s preliminary view that your application cannot proceed as you have not been employed for at least 6 months. For this reason the Commissioner is considering dismissing your application.

The Commissioner is prepared to consider any information or evidence that you have that indicates that you were employed for more than 6 months. In providing this information you should be aware that a delay in receipt of your final pay is not, of itself, an indication that you remain employed by the employer.

On receipt of the evidence or information the Commissioner will further consider your application. If the material does not show that you were employed after 16 June 2021 the Commissioner may dismiss your application without further correspondence.

The Commissioner requires that you provide this information by 4.00pm Thursday 24 June 2021 (Western Australia time) by return email.”

[6] The Applicant provided an email response later that day stating that he did have any further evidence. The Applicant did not provide any further evidence or information showing that the Applicant was employed after 16 June 2021 by the time and date indicated.

[7] 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.

[8] 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.

[9] 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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Evans 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 with this decision.

[11] While I appreciate the distress and uncertainty the Applicant may feel when alleging unfair dismissal and the desire to prosecute his claim, for the reasons outlined above the application cannot proceed under the FW Act.

COMMISSIONER

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