Daniel Cross v Autobarn

[2023] FWC 3318

[2023] FWC 3318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Cross
v

Autobarn

(U2023/10664)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 1 November 2023, Mr Daniel Cross (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).

1. Mr Cross advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Autobarn (the Respondent) on 19 July 2023, and that his dismissal took effect on 26 October 2023.

1. On 21 November 2023, the Commission attempted to contact Mr Cross on his nominated telephone number. A voicemail message was left advising Mr Cross that he had not served the minimum employment period. Later that day, the Commission emailed correspondence to Mr Cross’ nominated email addressing 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 Cross to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned him that if he did not contact the Commission within 14 days, his application may be dismissed without further notice. An SMS notification was also sent to Mr Cross’ nominated telephone number requesting that he contact the Commission.

1. On 7 December 2023, as the required documentation was not received, the Commission attempted to contact Mr Cross on his nominated telephone number. However, Mr Cross could not be reached. A voicemail message was left requesting that he urgently contact the Commission and that his application was at risk of being dismissed. To date, Mr Cross 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. 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 that Mr Cross 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] PR769320.

Printed by authority of the Commonwealth Government Printer

<PR769319>