Jake Enasio v Lonsec Fiscal Pty Ltd

[2021] FWC 5145

[2021] FWC 5145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Enasio
v
Lonsec Fiscal Pty Ltd
(U2021/6697)

COMMISSIONER BISSETT MELBOURNE, 19 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 29 July 2021 Mr Jake Enasio 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 Enasio alleged he had been unfairly dismissed by Lonsec Fiscal Pty Ltd (the Respondent) on 14 July 2021.

[2] Mr Enasio advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Lonsec Fiscal Pty Ltd on 15 February 2021 and that his dismissal took effect on 14 July 2021.

[3] On 2 August 2021 the Commission emailed correspondence to Mr Enasio’s nominated email address advising Mr Enasio that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Enasio to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Enasio did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Enasio’s nominated telephone number, requesting that he contact the Commission.

[4] As the required documentation was not received, on 17 August 2021 the Commission attempted to contact Mr Enasio via his nominated telephone number. However, Mr Enasio could not be reached. A voicemail message was left advising that his application may be dismissed. The Commission advised Mr Enasio to contact the Commission by close of business on 18 August 2021.

[5] To date, Mr Enasio has not replied to the Commission’s correspondence.

[6] 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.

[7] 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.

[8] Section 587(1) of the FW Act provides that:

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.

[9] Having regard to the circumstances of this matter I am satisfied that as Mr Enasio has not completed the required minimum employment period under the FW Act, his 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.

COMMISSIONER

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