Jaymen Paniora v Architectural Facade Cladding Solutions Pty Ltd

[2023] FWC 2955

[2023] FWC 2955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jaymen Paniora
v

Architectural Facade Cladding Solutions Pty Ltd

(U2023/9667)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 NOVEMBER 2023

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

1. On 5 October 2023, Mr Jaymen Paniora (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).

1. Mr Paniora advised in his Form F2 Unfair Dismissal Application (Form F2) that he did not know the exact date he commenced employment with Architectural Facade Cladding Solutions Pty Ltd (Respondent), but that it may have been April 2023, and that his dismissal took effect on 21 September 2023.

1. On 10 October 2023 the Commission attempted to contact Mr Paniora on his nominated telephone number. A message was left with Mr Paniora’s father advising him of the minimum employment period and requesting that Mr Paniora contact the Commission to confirm his employment dates.

1. Later that day, the Commission emailed advising Mr Paniora that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Paniora 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, his application may be dismissed without further notice.

1. As the required documentation was not received, the Commission attempted to contact Mr Paniora on his nominated telephone number, on 30 October 2023. However, Mr Paniora could not be reached. A voicemail message was left requesting that Mr Paniora file any documents or other evidence to support his claim that he had served the required minimum employment period. The voicemail also advised that if the Commission did not receive a reply within 3 days the matter may be dismissed. To date, Mr Paniora has not replied to the Commission’s correspondence.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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.

1. 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.

1. 
   As the material before the Commission indicates Mr Jaymen Paniora has not completed the required minimum employment period under the FW Act, I am satisfied the 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.

DEPUTY PRESIDENT

[1]  PR768176.

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<PR768175>