Joshua Want v Allianz

[2023] FWC 2503

[2023] FWC 2503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Want
v

Allianz

(U2023/7871)

COMMISSIONER BISSETT MELBOURNE, 3 OCTOBER 2023

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

1. On 22 August 2023, Joshua Want (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).

1. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Allianz on 20 February 2023 and that their dismissal took effect on 8 August 2023.

1. On 24 August 2023, the Commission contacted the Applicant on their nominated telephone number. The Commission advised the Applicant that, on the basis of the information provided to the Commission, they had not served the minimum employment period. The Applicant advised that they did not wish to discontinue the application at that time.

1. That same day, the Commission emailed correspondence to the Applicant’s nominated email address advising them 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 further advised that the Commission had not received a completed fee waiver form from the Applicant and that the application lodgement fee had not been paid. This correspondence warned that if they did not contact the Commission or provide a completed fee waiver form within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to their nominated telephone number requesting that they contact the Commission.

1. On 5 September 2023, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant urgently contact the Commission regarding the application as the required application fee had not been paid, and the minimum employment period had not been met on the basis of information provided to the Commission. The Applicant was advised that the application was otherwise likely to be dismissed with a decision published to this effect.

1. To date, the Applicant has not paid the lodgement fee, provided a completed fee waiver form, or provided any further information regarding their employment period.

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 the Applicant 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 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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