James Hoskins v Tesla Motors Australia Pty Ltd

[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
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of James Hoskins v Tesla Motors Australia Pty Ltd, the applicant, Mr Hoskins, sought a remedy for unfair dismissal from the Fair Work Commission (FWC). He claimed to have been dismissed by Tesla Motors Australia Pty Ltd, his employer, on 16 May 2023, after commencing employment with the company on 21 March 2023. The FWC was required to determine whether Mr Hoskins was eligible for a remedy under section 394 of the Fair Work Act 2009 (FW Act). A key issue was whether Mr Hoskins had fulfilled the minimum employment period stipulated by section 382 of the FW Act, which would entitle him to protection from unfair dismissal.

The FWC considered the information provided by Mr Hoskins and determined that he had not completed the required minimum employment period. Section 383 of the FW Act specifies that for an employer who is not a small business employer, the minimum employment period is six months. Given that Mr Hoskins had been employed for less than six months, the FWC found that his application had no reasonable prospect of success. Additionally, the FWC noted that Mr Hoskins had failed to respond to correspondence and attempts to contact him, further supporting the conclusion that his application was unlikely to succeed. Consequently, the FWC dismissed the application under section 587(1)(c) of the FW Act, as it lacked a reasonable prospect of success.

The FWC's decision to dismiss the application hinged on the fact that Mr Hoskins had not met the minimum employment period requirement under the FW Act. The Commission's correspondence to Mr Hoskins, advising him of the need to provide evidence of meeting the minimum employment period, went unanswered. The absence of any response from Mr Hoskins to the FWC's attempts to contact him reinforced the conclusion that the application did not have a reasonable prospect of success. Thus, the FWC upheld the dismissal of Mr Hoskins' application for unfair dismissal remedy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established