Joshua Ram v Toyota Financial Services

[2020] FWC 920

[2020] FWC 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Ram
v
Toyota Financial Services
(U2020/170)

COMMISSIONER BISSETT MELBOURNE, 24 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 6 January 2020 Mr Joshua Ram made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Ram advised that he commenced employment with Toyota Financial Services on 1 July 2019 and he was notified of his dismissal on 30 December 2019.

[3] On 7 January 2020 the Commission attempted to contact Mr Ram on his nominated mobile telephone number. A voicemail message was left for Mr Ram requesting he contact the Commission.

[4] Later that day the Commission emailed correspondence to Mr Ram’s nominated email address advising that on the basis of the information contained in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Ram to file any documents and evidence to support his claim that he had served the minimum employment period and that if Mr Ram did not contact the Commission within 14 days, his application may be dismissed without further notice.

[5] On 11 February 2020 the Commission emailed further correspondence to Mr Ram again advising that based on the information he had provided in his Form F2 it appeared that the Commission has no jurisdiction to deal with his application as he had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Mr Ram and had not been able to successfully contact him. That correspondence advised that unless Mr Ram contacted the Commission within 7 days and provided an explanation of why he did not respond to the direction in the first correspondence, his application would be determined on the material currently before the Commission without further reference to him.

[6] Later that day the Commission attempted to telephone Mr Ram on his nominated mobile telephone number. A voicemail message was left for Mr Ram requesting he contact the Commission.

[7] Also on that day the Commission sent an SMS message to Mr Ram’s nominated mobile telephone number advising there was a problem with his unfair dismissal application and requested a return call.

[8] On 19 February 2020 the Commission attempted to telephone Mr Ram on his nominated mobile telephone number. The call disconnected and there was no option to leave a voicemail message.

[9] To date, no response has been received by Mr Ram.

[10] 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.

[11] Section 383 of the FW Act sets out the minimum employment period:

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.

[12] In the circumstances of this matter, I am satisfied Mr Ram has not completed the required minimum employment period.

[13] Section 587(1) of the FW Act provides:

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 prospects of success.

[14] Having regard to the circumstances of this matter, I am satisfied that as Mr Ram has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, his application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR716902>

 1   PR716903.