James Hoskins v Tesla Motors Australia Pty Ltd
[2023] FWC 1625
•6 JULY 2023
| [2023] FWC 1625 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Hoskins
v
Tesla Motors Australia Pty Ltd
(U2023/4230)
| COMMISSIONER BISSETT | MELBOURNE, 6 JULY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 17 May 2023 Mr James Hoskins 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 Hoskins advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Tesla Motors Australia Pty Ltd on 21 March 2023 and that his dismissal took effect on 16 May 2023.
On 19 May 2023, the Commission emailed correspondence to Mr Hoskins’ nominated email address advising Mr Hoskins that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Hoskins 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 he did not contact the Commission within 14 days the application may be dismissed without further notice.
On 14 June 2023, the Commission attempted to contact Mr Hoskins on his nominated telephone number. A voicemail message was left requesting that he contact the Commission.
As the required documentation was not received, on 15 June 2023 the Commission attempted to contact Mr Hoskins on his nominated telephone number. However, Mr Hoskins could not be reached. A voicemail message was left requesting that Mr Hoskins call the Commission back as his application was at risk of being dismissed.
To date Mr Hoskins has not replied to the Commission’s correspondence.
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 Mr Hoskins 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 Mr Hoskins 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
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