Joshua Want v Allianz

[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

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).

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.

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.

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.

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.

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.

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.

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.

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.

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
Printed by authority of the Commonwealth Government Printer

The Fair Work Commission heard an application from Joshua Want who sought relief from unfair dismissal against Allianz. The applicant, who commenced employment on 20 February 2023, alleged that his dismissal on 8 August 2023 was unfair. The Commission, however, found that the applicant had not met the minimum employment period stipulated by the Fair Work Act 2009 (FW Act) and, consequently, did not qualify for protection against unfair dismissal.

The primary legal issue before the Commission was whether the applicant had served the requisite minimum employment period to be eligible for unfair dismissal protection. Under Section 382 of the FW Act, an employee is shielded from unfair dismissal if they have completed a specific employment period. The minimum employment period is six months for employers who are not small businesses and one year for small business employers, as outlined in Section 383 of the FW Act. The Commission determined that the applicant did not meet the six-month requirement for non-small business employers, leading to the conclusion that the applicant was not protected under the Act.

In reaching its decision, the Commission considered the applicant's failure to provide evidence of having served the minimum employment period and the absence of payment of the application lodgement fee or submission of a completed fee waiver form. Given the statutory requirements and the applicant's failure to furnish the necessary documentation, the Commission found that the application had no reasonable prospect of success. Consequently, the application was dismissed under Section 587(1)(c) of the FW Act, which allows the Commission to dismiss an application if it has no reasonable prospect of success.

The Commission dismissed the application for unfair dismissal on the basis that the applicant had not completed the minimum employment period required by the Fair Work Act 2009, and thus, the application lacked a reasonable prospect of success.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established