David Nasr v Italian Automobiles Group Pty Ltd

[2023] FWC 2206

[2023] FWC 2206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Nasr
v

Italian Automobiles Group Pty Ltd

(U2023/6882)

COMMISSIONER BISSETT MELBOURNE, 1 SEPTEMBER 2023

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

1. On 27 July 2023 David Nasr (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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Italian Automobiles Group Pty Ltd on 1 February 2023 and that his dismissal took effect on 14 July 2023.

1. On 31 July 2023 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising that he appeared to have not met the eligibility requirements to make an application of unfair dismissal as he did not appear to have met the minimum employment period. The voicemail informed the Applicant that he needed to provide information to show that he had met the eligibility requirements to make an application. He was advised he should provide the requested information within 14 days.

1. On 2 August 2023 the Commission sent correspondence to the Applicant’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had likely not served the minimum employment period. The correspondence directed the Applicant to file any documents or other 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. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that he contact the Commission.

1. Later that day the Commission received an email from the Applicant stating that he had commenced employment in February, but that correspondence did not outline any specific date or demonstrate that he had served the minimum employment period.

1. The Commission then attempted to the contact the Applicant on his nominated telephone number but the Applicant could not be reached. A voicemail message was left advising that although the Commission had received his email, it was apparent that his application did not meet the minimum employment period.

1. As the required documentation was not received, on 14 August 2023 the Commission again attempted to contact the Applicant on his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left advising him that on the basis of the information provided in his application, he had not served the minimum employment period. The Commissions also warned that if no contact was received, the application may be dismissed without further notice.

1. To date the Applicant 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. I am satisfied the Applicant 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 the Applicant 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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