Jonathan Tidey v Downer EDI Engineering Power Pty Ltd ABN: 53000983700

[2022] FWC 95

[2022] FWC 95

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jonathan Tidey
v

Downer EDI Engineering Power Pty Ltd ABN: 53000983700

(U2021/12002)

COMMISSIONER BISSETT MELBOURNE, 20 JANUARY 2022

Application for an unfair dismissal remedy

1. On 21 December 2021 Mr Jonathan Tidey 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 Tidey alleged he was unfairly dismissed by Downer EDI Engineering Power Pty Ltd ABN: 53000983700.

1. Mr Tidey advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 6 September 2021 and that his dismissal took effect on or around 29 September 2021.

1. On 22 December 2021 the Commission attempted to contact Mr Tidey on his nominated telephone number. Mr Tidey advised that he was not able to speak at the time and requested a call back later.

1. On that same day, the Commission emailed correspondence to Mr Tidey’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 Tidey to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Tidey did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. Later that day, the Commission contacted Mr Tidey again and he advised he would call back when he was available.

1. As the required documentation was not received, on 14 January 2022 the Commission attempted to contact Mr Tidey on his nominated telephone number, however Mr Tidey could not be reached. A voicemail message was left requesting that Mr Tidey contact the Commission. The Commission was only able to leave a 10 second message to be converted to SMS.

1. To date, Mr Tidey 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 of at least the 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 that:

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. Having regard to the circumstances of this matter I am satisfied that as Mr Tidey has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

[1] PR737613.

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