John Suarez v St Basil´s Age Care Nsw
[2023] FWC 2000
•16 AUGUST 2023
| [2023] FWC 2000 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Suarez
v
St Basil´s Age Care Nsw
(U2023/6504)
| COMMISSIONER BISSETT | MELBOURNE, 16 AUGUST 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 17 July 2023, John Suarez (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 they commenced employment with St Basil´s Age Care Nsw on 1 May 2023 and that they were notified of their dismissal on 28 June 2023.
On 20 July 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, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. This correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.
The Commission was unable to contact the Applicant via phone as the Applicant’s phone number was not provided in the Form F2.
As the required documentation was not received, on 2 August 2023, the Commission sent a second email to the Applicant’s nominated email address. The Commission advised that, on the basis of the information provided in the Form F2, the Applicant had not served the minimum employment period. The Commission further advised that the application may be dismissed if no further correspondence was received from the Applicant. The Commission also requested that the Applicant provide a contact number for the Commission to contact them.
To date, the Applicant has not provided any correspondence in response 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
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