Jeremy Burgess v Xu Lin

[2023] FWC 1854

[2023] FWC 1854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeremy Burgess
v

Xu Lin

(U2023/6259)

COMMISSIONER BISSETT MELBOURNE, 28 JULY 2023

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

1. On 11 July 2023 Mr Jeremy Burgess 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 Burgess advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Xu Lin (Respondent) on 11 January 2023 and that his dismissal took effect on 26 June 2023.

1. On 14 July 2023, the Commission attempted to contact Mr Burgess on his nominated telephone number regarding the minimum employment issue. A voicemail message was left requesting Mr Burgess contact the Commission as his employment did not meet the necessary minimum employment period.

1. Later that day the Commission emailed correspondence to Mr Burgess’ nominated email address advising Mr Burgess that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Burgess 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.

1. As the required documentation was not received, on 24 July 2023 the Commission attempted to contact Mr Burgess on his nominated telephone number as his employment had not met the necessary minimum employment period and he had not paid the required filing fee for his application. However, Mr Burgess could not be reached. A voicemail message was left requesting that he contact the Commission. In this voicemail message, Mr Burgess was also warned that as his employment had not met the minimum employment period, his application may be dismissed.

1. To date Mr Burgess 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. I am satisfied Mr Burgess has not completed the required minimum employment period.

1. 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 Mr Burgess 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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