David Bayly v Crown Currency Exchange

[2024] FWC 589

[2024] FWC 589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Bayly
v

Crown Currency Exchange

(U2024/727)

VICE PRESIDENT CATANZARITI SYDNEY, 6 MARCH 2024

Application for an unfair dismissal remedy

1. On 23 January 2024 David Bayly (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 (the Act).

1. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Crown Currency Exchange on 25 September 2023 and that their dismissal took effect in the first week of January 2024. 

1. On 23 January 2024 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting the Applicant phone the Commission to clarify their employment dates and to discuss a potentially alternative application. The voicemail message also referred the Applicant to the incomplete letters to be emailed later that day. 

1. Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents/evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that they contact the Commission.
   
   

2. As the required documentation was not received, on 6 February 2024 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call or email the Commission to clarify their dates of employment. The voicemail message also noted that the matter may be dismissed without further notice, if communication is not received.

1. On 15 February 2024, the matter was allocated to my Chambers. On the same day, my Chambers attempted to contact the Applicant via telephone. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the prior correspondence as soon as possible. The voicemail also warned that if they did not contact the Commission the application may be dismissed without further notice.

1. My Chambers sent correspondence to the Applicant on 22 February 2024 and they were required to respond by 5:00pm on 29 February 2024. It was in this correspondence that the Applicant was advised the application would be dismissed without any notice if no response was received.

1. To date the Applicant has not replied to the Commission’s correspondence.

1. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.

1. Section 383 of the 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 of the 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or
 (b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
 (b) on application.

1. As the Applicant has not completed the required minimum employment period under the Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act.

VICE PRESIDENT

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