Daniel Szatmary v Dia Investments Australia Pty Ltd T/A Bar 11

[2021] FWC 4847

[2021] FWC 4847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Szatmary
v
DIA Investments Australia Pty Ltd T/A Bar 11
(U2021/6379)

COMMISSIONER BISSETT MELBOURNE, 9 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 20 July 2021 Mr Daniel Szatmary made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Szatmary alleged that he had been unfairly dismissed by DIA Investments Australia Pty Ltd T/A Bar 11 (the Respondent) on 16 July 2021.

[2] Mr Szatmary advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 19 January 2021 and that his dismissal took effect on 16 July 2021.

[3] On 21 July 2021 the Commission contacted Mr Szatmary on his nominated telephone number and advised Mr Szatmary that he may not have served the minimum employment period. Mr Szatmary advised he did not believe this to be true and would work out himself if this was correct.

[4] Later that day, the Commission emailed correspondence to Mr Szatmary’s nominated email address advising 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 Szatmary 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 Szatmary did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On 23 July 2021, the Commission received email correspondence from the Mr Szatmary’s father, Robert Szatmari (sic). Mr Szatmari expressed the view that the application should proceed even though his son’s period of employment fell 3 days short of the minimum employment period. In that email Mr Szatmari said he considered that the 3 day shortfall was “not a valid, reasonable or conscionable reason to dismiss this complaint because it denies Daniel Szatmary natural justice due to the fact that it is only three days; and the facts and unfair dismissal actions are not effected by that implied limitation.” Mr Szatmari also set out what he saw us unreasonable conduct of the Respondent.

[6] The matter was then referred to my chambers for consideration. On 26 July 2021 my chambers issued email correspondence to Mr Szatmary and Mr Szatmari explaining in detail the jurisdictional requirements of the FW Act regarding minimum employment periods. The correspondence informed them there is no discretion afforded to the Commission regarding this limitation. Any evidence or submissions as to why the minimum employment period did not apply in this case were sought by 4.00 pm Friday 6 August 2021. The email warned that a failure to provide these materials would result in a decision being issued without further correspondence.

[7] The Commission received no material in reply from either Mr Szatmary or his father on this question.

[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] 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.

[10] 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.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Szatmary 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.

COMMISSIONER

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