Farhaan Buksh v Mitsubishi Chadstone T/A Automotive Dealership

[2020] FWC 3312

[2020] FWC 3312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Farhaan Buksh
v
Mitsubishi Chadstone T/A Automotive Dealership
(U2020/6026)

COMMISSIONER BISSETT MELBOURNE, 30 JUNE 2020

Application for an unfair dismissal remedy – minimum employment period – application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 1 May 2020 Mr Farhaan Buksh (Applicant) made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he said he had been unfairly dismissed by Mitsubishi Chadstone T/A Automotive Dealership (Respondent).

[2] On 7 May 2020 the Commission listed the matter for conciliation on 1 June 2020.

[3] On 11 May 2020 the Respondent filed their Form F3 – Employer Response to Unfair Dismissal Application. In its response the Respondent raised a jurisdictional objection on the grounds that the Applicant did not have the requisite minimum employment period.

[4] On 19 May 2020 the conciliation scheduled for 1 June 2020 was cancelled due to advice received from the Respondent that they wanted their jurisdictional objection to be dealt with in the first instance.

[5] On 20 May 2020 directions were issued to the parties and the matter was listed for Jurisdiction (Minimum Employment Period) Conference/Hearing on 19 June 2020. The Applicant was directed to file and serve his submissions, witness statements and other documentary material by no later than noon on Thursday, 11 June 2020. No submissions were received from the Applicant by the due date.

[6] On 28 May 2020 the Applicant telephoned the Commission and enquired about the forms he needed to complete. The Applicant was advised that he could access the forms from the link in the Notice of Listing.

[7] On 11 June 2020 the Commission sent correspondence to the Applicant’s nominated email address regarding his failure to file submissions by the required date. The correspondence required the Applicant to advise the Commission when he intended to file his submissions. The Applicant did not respond.

[8] On 12 June 2020 the Commission attempted to contact the Applicant on his nominated telephone number regarding overdue submissions. The Applicant did not answer the call. A voicemail message was left requesting the Applicant to return the Commission’s call. The Applicant did not return the call.

[9] On 15 June 2020 the Commission sent correspondence to the Applicant’s nominated email address advising that his submissions were overdue and requesting that he advise the Commission by 10.00 am on Tuesday, 16 June 2020 when he intended to file his submissions. The correspondence also warned that the matter was at risk of being listed for a Non-compliance Hearing on Friday, 19 June 2020. The Applicant did not respond.

[10] On 17 June 2020 the Commission again attempted to contact the Applicant on his nominated telephone number regarding his overdue submissions. The Applicant did not answer the call. A voicemail message was left requesting the Applicant call the Commission as his matter was at risk of being listed for a Non-compliance hearing which may result in the dismissal of his application. The Applicant did not return the Commission’s call.

[11] As no submissions had been filed, the matter was listed for Non-compliance hearing before me on 19 June 2020. Both the Applicant and Respondent attended the hearing. I granted the Applicant an extension of time to file his submissions by noon on Monday, 22 June 2020. The Applicant gave a commitment that he would file his submissions by the due date. The Applicant failed to file his submissions.

[12] On 22 June 2020 my chambers wrote to the Applicant regarding his failure to comply with directions. The Applicant was advised that his application may be dismissed under s.399A for failure to comply with the directions issued. The correspondence directed the Applicant to provide submissions with reasons as to why the Commission should not dismiss his application by 4.00 pm on Wednesday, 24 June 2020.

[13] Later on 22 June 2020 the Applicant provided the following explanation as to why the Commission should not dismiss his application:

The reason to why they shouldn’t dismiss my case is because intimidation by a manager isn’t right, and to be unfairly dismissed and to be told numerous times “ if you don’t like it your [sic] can resign” isn’t appreciated. Paul Hicks had the intention to making me resign on my own choice and then when I didn’t, kept getting the idea of myself being intimidated out of the place, I’m not a cleaner made me cleaner the outside of the dealership on the footpaths by picking up rubbish, and then heard of you don’t want to do that you can resign.

[14] On 25 June 2020 the Commission sent the following email correspondence to the Applicant’s nominated email address:

Dear Mr Buksh

You will recall that the Commission wrote to you on 22 June 2020 advising that the Commission was considering dismissing your application under s.399A of the Fair Work Act 2009 (FW Act) as you had failed to file submissions as directed by the Commission.

Due to an error in that letter this email is to advise you that the Commission is considering dismissing your application pursuant to s.587 of the FW Act as you had failed to file submissions and therefore prosecute your case.

Given this error the Commissioner is prepared to give you a further opportunity to put any submissions as to why your application should not be dismissed.

The Commissioner will give you until 4.00pm Monday 29 June 2020 to make any further submissions as to why your application should not be dismissed. Should you want the Commission to rely on your previous submissions advice to this effect would be appreciated.

The Commissioner may then make a decision on the basis of the materials filed.

The Commission apologises to you for this confusion but wants to ensure you have the opportunity to put your case on this question.

[15] To date, the Applicant has not provided any further information in response to the email he was sent on 25 June 2020. Apart from attending the Non-compliance hearing on 19 June 2020 the Applicant has taken no steps to prosecute his unfair dismissal application despite repeated attempts by the Commission to ascertain his intentions regarding the matter.

[16] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[17] 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.

[18] In the circumstances of this matter, and where the Applicant has failed to file any material otherwise, I am satisfied that the Applicant has not completed the required minimum employment period to be protected from unfair dismissal.

[19] 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 prospects of success.

[20] Having regard to the circumstances of this matter, I am satisfied that the Applicant has not completed the required minimum employment period under the FW Act, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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