Dimitrios Tsiantas v LCB Victoria Pty Ltd

[2024] FWC 3380

[2024] FWC 3380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dimitrios Tsiantas
v

LCB Victoria Pty Ltd

(U2024/12448)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 DECEMBER 2024

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

1. Mr Dimitrios Tsiantas applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 17 October 2024.

1. Mr Tsiantas stated in his unfair dismissal application (Form F2) that his employment with LCB Victoria Pty Ltd (the Respondent) commenced on 22 February 2023. Mr Tsiantas did not specify the date he was notified of his dismissal or the date his dismissal took effect in his Form F2. Instead, Mr Tsiantas stated that there was “[n]o clear or formal notification of dismissal” in his Form F2.

1. On 25 October 2024, the Commission attempted to contact Mr Tsiantas on his nominated telephone number. A voicemail message was left requesting Mr Tsiantas to urgently contact the Commission. This was because his Form F2 was incomplete and it was unclear whether he had served the minimum employment period to be protected from unfair dismissal under the Act.

1. On 29 October 2024, the Commission emailed correspondence to Mr Tsiantas’s nominated email address informing him that the information that he had provided in his Form F2 was incomplete. The correspondence directed Mr Tsiantas to file any documentation to support any claim that he had served the applicable minimum employment period under the Act. Further, the correspondence informed Mr Tsiantas that the Commission had not received payment of the required application fee or a copy of a completed Form F80 in relation to his unfair dismissal application. That correspondence also warned Mr Tsiantas that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

1. Later that day, a SMS notification was sent to Mr Tsiantas’s nominated mobile number requesting him to contact the Commission.

1. The Commission did not receive any documentation in support of Mr Tsiantas’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period.

1. The Commission made a final attempt to contact Mr Tsiantas on his nominated telephone number on 11 November 2024. The call was not answered and a voicemail was left requesting Mr Tsiantas to urgently contact the Commission in relation to his unfair dismissal application.

1. Mr Tsiantas did not respond to the Commission’s multiple attempts to contact him in relation to his Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 395 of the Act, which deals with application fees, provides as follows:

   “395  Application fees 

   (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations. 

   (2) The regulations may prescribe: 

   (a) a fee for making an application to the FWC under this Division; and 

   (b) a method for indexing the fee; and 

   (c) the circumstances in which all or part of the fee may be waived or refunded.” (bold text in the original) 

2. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

3. Section 587 of the Act relevantly 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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. In these circumstances, I am satisfied that the application was not made in accordance with the Act. There have been multiple requests made to Mr Tsiantas for confirmation of his dates of employment. In the continuing absence of such information, it is not possible to confirm whether Mr Tsiantas has completed the applicable minimum employment period. However, given the absence of the required fee payment or a completed Form F80, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. In circumstances where Mr Tsiantis has failed to respond to the Commission’s four attempts to engage with him, I am satisfied that it is appropriate to dismiss the purported application. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR782043

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<PR782042>