Damon Gable v WA Steel Group Pty Ltd

[2023] FWC 2938

[2023] FWC 2938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Damon Gable
v

WA Steel Group Pty Ltd

(U2023/9902)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 NOVEMBER 2023

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

1. On 10 October 2023 Mr Damon Gable (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).

1. Mr Gable advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with WA Steel Group Pty Ltd (Respondent) on 7 September 2023 and that his dismissal took effect on 10 October 2023.

1. On 13 October 2023, the Commission attempted to contact Mr Gable on his nominated telephone number. A voicemail message was left requesting that Mr Gable refer to the Commission’s email dated 13 October 2023, and respond to the Commission by telephone or email. Later that day, the Commission emailed correspondence to Mr Gable’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Gable 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, his application may be dismissed without further notice.

1. On 17 October 2023, Mr Gable emailed correspondence to the Commission providing several documents not related to the minimum employment period issue and without any further reference to the minimum employment period issue. As the required documentation was not received, the Commission attempted to contact Mr Gable on his nominated telephone number on 25 October 2023. However, Mr Gable could not be reached. A voicemail message was left requesting that Mr Gable urgently refer to the Commission’s correspondence dated 13 October 2023 and respond to the Commission by phone or email. To date Mr Gable 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.

2. 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 the material before the Commission indicates Mr Gable has not completed the required minimum employment period under the FW Act, I am satisfied the 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.

DEPUTY PRESIDENT

[1] PR768133.

Printed by authority of the Commonwealth Government Printer

<PR768132>