Jon Challands v South Park Real Estate Pty Ltd

[2023] FWC 241

[2023] FWC 241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jon Challands
v

South Park Real Estate Pty Ltd

(U2022/11926)

COMMISSIONER BISSETT MELBOURNE, 30 JANUARY 2023

Application for an unfair dismissal remedy

1. On 16 December 2022 Mr Jon Challands 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 Challands advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with South Park Real Estate Pty Ltd on 27 October 2022 and that his dismissal took effect on 13 December 2022.

1. On 18 December 2022 the Commission attempted to contact Mr Challands on his nominated telephone number. A voicemail message was left requesting that Mr Challands contact the help line to discuss employment dates and explaining minimum employment period eligibility.

1. Later that day the Commission sent correspondence to Mr Challands’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Challands 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 23 December 2022 and again on 6 January 2023 the Commission attempted to contact Mr Challands on his nominated telephone number. However, Mr Challands could not be reached on either occasion and a voicemail message was left requesting that he urgently contact the Commission by telephone to our help line to discuss the application and minimum employment period requirements.

1. To date Mr Challands 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 Challands 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 Challands has not completed the required minimum employment period under the FW Act, I am satisfied that his 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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