James Aldred v Tulla Drilling Pty Limited

[2023] FWC 2308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

James Aldred
v

Tulla Drilling Pty Limited

(U2023/7296)

COMMISSIONER BISSETT

MELBOURNE, 13 SEPTEMBER 2023

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

On 8 August 2023, James Aldred (the Applicant) 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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Tulla Drilling Pty Limited on 18 June 2023 and that his dismissal took effect on 26 July 2023.

On 14 August 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. This correspondence directed the Applicant to file any documents or other evidence to support his claim that he had served the required minimum employment period. This correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that he contact the Commission.

On 15 August 2023, the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting that the Applicant call the Commission back regarding his eligibility to make an unfair dismissal application and provided the helpline number.

As no correspondence was received from the Applicant, on 24 August 2023, the Commission attempted to contact the Applicant on his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call back regarding his eligibility to make an unfair dismissal application, and as his application appears to not have met the minimum employment period. The contact number for the Commission and matter number were also provided.

To date, the Applicant has not provided any further correspondence to 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. I am satisfied the Applicant has not completed the required minimum employment period.

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 prospect of success.

As the Applicant has not completed the required minimum employment period under the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, James Aldred filed an application for relief from unfair dismissal against Tulla Drilling Pty Limited. The Applicant, James Aldred, claimed that he was unfairly dismissed by the Respondent, Tulla Drilling Pty Limited, on 26 July 2023, after having commenced employment on 18 June 2023. The Commission was asked to determine whether the dismissal was unfair and whether the Applicant was eligible to make such an application under the Fair Work Act 2009.

The central legal issue before the Commission was whether the Applicant had served the minimum employment period required under the Fair Work Act to be eligible for an unfair dismissal application. Under section 382 of the Act, an individual is protected from unfair dismissal if they have completed a specified period of employment. The minimum employment period is six months if the employer is not a small business employer and one year if the employer is a small business employer. Given that Tulla Drilling Pty Limited is not classified as a small business employer, the key question was whether the Applicant had been employed for at least six months by the date of his dismissal.

The Commission found that the Applicant had not completed the required minimum employment period of six months, as stipulated by section 383 of the Fair Work Act. The Applicant was notified via email and SMS that his application did not meet the eligibility criteria and was given an opportunity to provide evidence to support his claim. Despite multiple attempts to contact the Applicant, he did not respond, and no further evidence was provided. Consequently, the Commission concluded that the application had no reasonable prospect of success under section 587(1)(c) of the Fair Work Act. As a result, the application was dismissed.

In summary, the Fair Work Commission dismissed James Aldred's application for relief from unfair dismissal on the grounds that he had not served the required minimum employment period of six months, as stipulated by the Fair Work Act 2009. The Commission found that the application had no reasonable prospect of success and, therefore, dismissed the application under section 587(1)(c) of the Act.

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