Hamidreza Hasheminejad v Nearmap Australia Pty Ltd

[2024] FWC 1306

[2024] FWC 1306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hamidreza Hasheminejad
v

Nearmap Australia Pty Ltd

(U2024/2776)

DEPUTY PRESIDENT EASTON SYDNEY, 20 MAY 2024

Application for an unfair dismissal remedy

1. On 11 March 2024 Mr Hamidreza Hasheminejad made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. In the Form F2 Unfair Dismissal Application (Form F2) Mr Hasheminejad indicated that he commenced employment with Nearmap Australia Pty Ltd on 19 February 2024. Mr Hasheminejad advised in the Form F2 that he did not know the exact date that his dismissal took effect.

1. On 14 March 2024 the Commission emailed correspondence to Mr Hasheminejad’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Hasheminejad to file any documents/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 the application may be dismissed without further notice. An SMS notification was also sent to Mr Hasheminejad’s nominated telephone number asking that he contact the Commission.

1. On 2 April 2024 the Commission attempted to contact Mr Hasheminejad on his nominated telephone number. A voicemail message was left informing Mr Hasheminejad that the employment dates provided on his application indicate that he had not served the required minimum employment period. The voicemail message referred to previous correspondence the Commission had sent in relation to the minimum employment period and requested Mr Hasheminejad contact the Commission to confirm his intentions.

1. As the required documentation was not received, on 11 April 2024 the Commission attempted to contact Mr Hasheminejad by telephone. However he could not be reached. A voicemail message was left asking him to contact the Commission to discuss his application and confirm his intentions. The Commission informed Mr Hasheminejad that if instructions were not received by close of business on 15 April 2024, his matter may be dismissed.

1. To date Mr Hasheminejad has not replied to the Commission’s correspondence.

1. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. On the materials provided by Mr Hasheminejad there seems little doubt that he has not completed the required minimum employment period.

1. Section 383 of the 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 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. Mr Hasheminejad’s unfair dismissal claim has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act.

1. I have separately made an order to this effect (PR775140).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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