Dylan Mayers v Mortonco

[2023] FWC 3349

[2023] FWC 3349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dylan Mayers
v

Mortonco

(U2023/11341)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 14 November 2023, Mr Dylan Mayers (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. Mr Mayers advised in his Form F2 – Unfair Dismissal Application (Form F2) that his dismissal took effect on 12 November 2023, however he did not know the exact date he commenced employment with Mortonco (the Respondent).

1. On 21 November 2023 the Commission attempted to contact Mr Mayers on his nominated telephone number. A voicemail message was left requesting that Mr Mayer’s refer to the Minimum Employment Period letter sent by the Commission and call the Commission back. Later that day, the Commission emailed correspondence to Mr Mayers’ nominated email address, advising him that, due to the lack of information provided in the Form F2, it remained unclear if he had served the minimum employment period. The correspondence directed Mr Meyers 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 his application may be dismissed without further notice. An SMS notification was also sent to Mr Mayers’ nominated telephone number requesting that he contact the Commission.

1. On 4 December 2023, as the required documentation were not received, the Commission attempted to contact Mr Mayers on his nominated telephone number, upon being answered, the call was terminated immediately by the recipient of the call. Later that day, the Commission emailed correspondence to Mr Mayers’ nominated email address confirming the Commission had attempted to call Mr Mayers to discuss his outstanding information, due by 5 December 2023. The email confirmed that the application was at risk of being dismissed and Mr Mayers was asked to call the Commission.

1. On 6 December 2023 the Commission attempted to contact Mr Mayers on his nominated telephone number. A voicemail message was sent which requested that Mr Mayers call the Commission to discuss his incomplete application and warned him that his application was at risk of dismissal. To date Mr Mayers has not replied to the Commission’s correspondence.

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. In considering all the circumstances, I am satisfied that as the application form in question was incomplete and it has not been made in accordance with the Act. Given the absence of a completed Form F2, 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.

1. Despite the attempts by the Commission to contact Mr Mayers, the reminders and multiple requests, he has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. The application is dismissed. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1]     PR769414.

Printed by authority of the Commonwealth Government Printer

<PR769413>