Joshua Kane Hall v Aqnp Solutions Pty Ltd

[2022] FWC 1600

[2022] FWC 1600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Kane Hall
v

Aqnp Solutions Pty Ltd

(U2022/5773)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2022

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

[1]       On 26 May 2022 Mr Joshua Kane Hall 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).

[2]       Mr Hall advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Aqnp Solutions Pty Ltd on 17 January 2022 and that his dismissal took effect on 20 May 2022.

[3]       On 27 May 2022 the Commission contacted Mr Hall on his nominated telephone number. The Commission advised Mr Hall that he had not served the minimum employment period. Mr Hall maintained that he wished for his application to proceed. The Commission informed Mr Hall that an appropriate alternative application with the Commission may be under the general protections provisions.

[4]       Later that day, the Commission emailed correspondence to Mr Hall 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 Hall to file any documents/evidence to support a claim that he had served the required minimum employment period. That correspondence also warned that if Mr Hall did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5]       As the required documentation was not received, on 8 June 2022 the Commission attempted to contact Mr Hall via telephone. However, Mr Hall could not be reached. An email was also sent to Mr Hall requesting he contact the Commission.

[6]       To date, Mr Hall has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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.

[10]     Having regard to the circumstances of this matter I am satisfied that as Mr Hall 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 with this decision.

COMMISSIONER

[1] PR742965.

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