Dmitry Leonov v Liddelow Enterprises Pty Ltd
[2023] FWC 2221
•13 SEPTEMBER 2023
| [2023] FWC 2221 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dmitry Leonov
v
Liddelow Enterprises Pty Ltd
(U2023/7231)
| COMMISSIONER BISSETT | MELBOURNE, 13 SEPTEMBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative
On 6 August 2023, Dmitry Leonov (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).
The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Liddelow Enterprises Pty Ltd on 27 February 2023 and that their dismissal took effect on 2 August 2023.
On 10 August 2023, the Commission attempted to contact the Applicant’s representative on their nominated telephone number. A voicemail message was left requesting that the Applicant’s representative contact the Commission urgently and to refer to correspondence being sent from the Commission for further information.
Later that day, the Commission emailed correspondence to the Applicant and their representative’s nominated email addresses advising that, on the basis of the information provided in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant and their representative to file any documents or other evidence to support their claim that the Applicant had served the required minimum employment period. This 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.
As no further correspondence was received, on 22 August 2023, the Commission attempted to contact the Applicant’s representative on their nominated telephone number. The representative could not be reached and there was no facility to leave a voicemail.
Later that day, the Commission attempted to contact the Applicant. A voicemail message was left requesting that the Applicant or their representative urgently call the Commission to discuss the application by 23 August 2023.
To date, neither the Applicant nor their representative have provided further correspondence to the Commission.
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.
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.
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.
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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