Eady Jarman v Simon Fenech

[2023] FWC 2404

[2023] FWC 2404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Eady Jarman
v

Simon Fenech

(U2023/7149)

COMMISSIONER BISSETT MELBOURNE, 19 SEPTEMBER 2023

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

1. On 3 August 2023, Eady Jarman (the Applicant) made an application to the Fair Work Commission for a remedy from 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 they commenced employment with Simon Fenech (the Respondent) on 1 May 2023 and that their dismissal took effect on 14 July 2023.

1. On 8 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting a call back to discuss the minimum employment period and to obtain a preferred email address for the Respondent.  The Commission’s helpline number and the relevant matter number were also provided.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they 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.

1. As no correspondence was received, on 16 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call back the Commission to discuss their application.

1. On 24 August 2023, a further attempt was made by the Commission to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call the Commission to discuss their application.

1. To date, the Applicant has not provided any further correspondence 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 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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