Garry Browne v Icontracting / Muntulgura Guruma Pty Ltd

[2024] FWC 822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Garry Browne
v

Icontracting / Muntulgura Guruma Pty Ltd

(U2024/1481)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 APRIL 2024

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

On 12 February 2024, Mr Garry Browne 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).

Mr Browne advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Icontracting / Muntulgura Guruma Pty Ltd (the Respondent) in August 2023 and that his dismissal took effect on 22 January 2024.

On 13 February 2024, the Commission emailed correspondence to Mr Browne’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Browne 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 Mr Browne did not contact the Commission within 14 days his application may be dismissed without further notice.

On 14 February 2024, the Commission contacted Mr Browne on his nominated telephone number. The Commission advised Mr Browne that he did not appear to have served the minimum employment period. Mr Browne advised that he did not want his matter closed. The Commission highlighted that Mr Browne had 14 days to respond to the email the Commission had sent him the day prior, on 13 February 2024.

As the required documentation was not received, on 6 March 2024 the Commission attempted to contact Mr Browne on his nominated telephone number. However, Mr Browne could not be reached, and a voicemail message was left requesting that he call the Commission back by close of business on 7 March 2024. To date Mr Browne has not made further contact with 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. 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 prospects of success.

As the material before the Commission does not indicate that Mr Browne has completed the required minimum employment period under the FW Act, I am satisfied the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR772908.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Garry Browne, applied to the Fair Work Commission for a remedy for unfair dismissal against his former employer, Icontracting / Muntulgura Guruma Pty Ltd. Mr Browne alleged that his dismissal on 22 January 2024 was unfair and that he had been employed by the respondent since August 2023. The Commission questioned whether Mr Browne had completed the minimum employment period as required under the Fair Work Act 2009, as he had not provided sufficient evidence to demonstrate this. After multiple attempts to contact Mr Browne to request additional documentation, the Commission concluded that there were insufficient grounds to proceed with the application.

The central legal issue was whether Mr Browne had served the requisite minimum employment period, as stipulated by sections 382 and 383 of the Fair Work Act 2009. The Fair Work Commission needed to determine whether Mr Browne had completed six months of continuous employment, given that the respondent is not classified as a small business employer. The Commission's analysis focused on the timeliness and adequacy of the evidence submitted by Mr Browne in response to the requests for documentation. Without this critical information, the Commission was unable to ascertain whether the statutory minimum employment period had been met, leading to the conclusion that the application had no reasonable prospects of success.

Given the absence of evidence demonstrating that Mr Browne had completed the minimum employment period, the Fair Work Commission found that the application did not meet the criteria for proceeding under section 394 of the Fair Work Act 2009. The Commission dismissed the application under section 587(1)(c) of the Act, which permits dismissal where an application has no reasonable prospects of success. The Deputy President ordered that the application be dismissed and that an appropriate Order be issued accordingly.

The Fair Work Commission's decision effectively terminated Mr Browne's application for unfair dismissal due to the lack of evidence supporting his claim of having completed the required minimum employment period. The Order issued mandates that the application is dismissed, reflecting the Commission's determination that the application did not meet the statutory requirements for consideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established