David Gauci v ITM Mining Pty Ltd

[2022] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

David Gauci

ITM Mining Pty Ltd

(U2022/769)

cOMMISSIONER bISSETT

MELBOURNE, 24 FEBRUARY 2022

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

On 14 January 2022, Mr David Gauci (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).

The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with ITM Mining Pty Ltd (Respondent) on 14 July 2021 and that his dismissal took effect on 13 January 2022.

The Commission listed the matter for conciliation on 21 January 2022.

On 28 January 2022 the Respondent filed their Form F3 – Employer Response to Unfair Dismissal Application (Form F3) raising a jurisdictional objection on the basis that the Applicant did not serve the minimum employment period.

On 31 January 2022 the Commission cancelled the conciliation and attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

On 1 February 2022 the Applicant contacted the Commission. The Commission advised the Applicant that the Respondent had raised a jurisdictional objection in their Form F3 that he had not met the minimum employment period. The Commission also explained to the Applicant that correspondence had been sent to him requesting he file any documents and evidence to support his claim that he had served the required minimum employment period.

To date, the Applicant has not filed any documents and evidence to support his claim that he has served the minimum employment period.

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.

In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

Section 383 of the Act defines 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.

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 prospects of success.

Having regard to the circumstances of this matter I am satisfied that as the Applicant 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 shortly.

COMMISSIONER

[1] PR738640

Printed by authority of the Commonwealth Government Printer

The case of David Gauci v ITM Mining Pty Ltd involved an application for relief from unfair dismissal made by Mr David Gauci to the Fair Work Commission (FWC). The Applicant alleged that his dismissal by ITM Mining Pty Ltd on 13 January 2022 was unfair. The matter was listed for conciliation, but the Respondent raised a jurisdictional objection, claiming that the Applicant had not completed the minimum employment period as required by the Fair Work Act 2009 (FW Act). This objection formed the crux of the legal issues that the Commission had to address.

The primary legal issue before the Commission was whether the Applicant had completed the requisite minimum employment period, as defined by section 383 of the FW Act, to be protected from unfair dismissal under section 382 of the FW Act. The Respondent argued that the Applicant had not completed the six-month minimum employment period, as the employer was not a small business employer. The Commission needed to determine if the Applicant's dismissal application had reasonable prospects of success given the lack of evidence provided by the Applicant to demonstrate that he had met the minimum employment period.

The Commission found that the Applicant had not provided any documents or evidence to support his claim that he had completed the minimum employment period. As such, the Commission was satisfied that the Applicant had not met the minimum employment period requirement. The Commission further noted that, based on the information provided, the application had no reasonable prospects of success. Consequently, the Commission dismissed the application under section 587(1)(c) of the FW Act, which allows the FWC to dismiss an application if it has no reasonable prospects of success.

An Order will be issued to this effect, formally dismissing the Applicant's unfair dismissal application.

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Legal Principle Established