David Hays v Aus Projects NT Pty Ltd

[2023] FWC 1923

[2023] FWC 1923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Hays
v

Aus Projects NT Pty Ltd

(U2023/6037)

COMMISSIONER BISSETT MELBOURNE, 3 AUGUST 2023

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

1. On 5 July 2023 Mr David Hays 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 Hays advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Aus Projects NT Pty Ltd on 16 June 2023 and that his dismissal took effect on 23 June 2023.

1. On 7 July 2023 the Commission attempted to contact Mr Hays on his nominated telephone number. A voicemail message was left by the Commission advising Mr Hays that he had not served the minimum employment period and that he contact the Commission.

1. Later this day, the Commission emailed correspondence to Mr Hays’s nominated email address advising Mr Hays that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Hays to file any documents or 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 the application may be dismissed without further notice.

1. On 11 July 2023 the Commission received an email from Mr Hays advising he was unable to download any forms. The Commission called Mr Hays and assisted him to navigate the website and locate information.

1. On 17 July 2023 the Commission contacted Mr Hays on his nominated telephone number and Mr Hays advised that he would email the Commission.

1. As no email was received, on 21 July 2023 the Commission contacted Mr Hays on his nominated telephone number advising that no correspondence had been received. Mr Hays was advised that any correspondence to the Commission should be filed by close of business 24 July 2023.

1. To date Mr Hays has not provided any documentation in response to the Commission.

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

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

COMMISSIONER

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