Jaidyn Scott De-Ath v Ajmir Safi (Big Barbers Weston Creek)

[2024] FWC 1745

[2024] FWC 1745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jaidyn Scott De-Ath
v

Ajmir Safi (Big Barbers Weston Creek)

(U2024/5543)

DEPUTY PRESIDENT EASTON SYDNEY, 30 JULY 2024

Application for an unfair dismissal remedy

1. On 16 May 2024 Mr Jaidyn Scott De-Ath made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr De-Ath advised in the Form F2 Unfair Dismissal Application that he commenced employment with Ajmir Safi (Big Barbers Weston Creek) on 2 May 2024 and that his dismissal took effect on 13 May 2024.

1. On the information provided by Mr De-Ath, he worked for Big Barbers for 11 days.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Mr De-Ath’s case it does not matter whether Big Barbers is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months

1. Commission staff sought further information from Mr De-Ath about whether he had served the minimum employment period:

(a)On 21 May 2024 Commission staff attempted to call Mr De-Ath. The call was answered, communication was attempted but no response was given and call was ended.

(b)Later that day Commission staff emailed Mr De-Ath advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The email asked Mr De-Ath to file any documents/evidence to support his claim that he had served the required minimum employment period. That email 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 De-Ath asking that he contact the Commission.

(c)On 25 May 2024 Commission staff received an email from Mr De-Ath stating that he understood that he may not meet the minimum employment period but that he still believed the dismissal was unfair. Mr De-Ath provided no documentation or evidence regarding the minimum employment period.

(d)On 6 June 2024 Commission staff attempted to call Mr De-Ath. The call was answered, and communication attempted but there was no response, and the call was ended.

(e)Later that day Commission staff emailed Mr De-Ath advising him to provide documents/evidence to support his claim that he had served the required minimum employment period. That email also warned that if he did not contact the Commission by 9 June 2024 the application may be dismissed without further notice.

1. To date Mr De-Ath has not provided any further information that supports his eligibility to make the application.

Section 587

1. The relevant provisions in s.587 of the Act are 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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

Does Mr De-Ath’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mr De-Ath’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr De-Ath on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr De-Ath was employed for approximately 11 days.

1. Mr De-Ath was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr De-Ath did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about any facts that could change the outcome of his application.

1. On 12 July 2024 Mr De-Ath was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Mr De-Ath telling his that an important email had been sent. Mr De-Ath did not respond to this correspondence.

1. I am satisfied that Mr De-Ath has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr De-Ath’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR776644).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR776643>