Julian Caparn v Fortescue Metals Group / Fortescue Future Industries

[2022] FWC 1652

[2022] FWC 1652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julian Caparn

v

Fortescue Metals Group / Fortescue Future Industries

(U2022/5795)

cOMMISSIONER bISSETT melbourne, 5 july 2022

Application for relief from unfair dismissal – failure to pay filing fee – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

1. On 27 May 2022, Mr Julian Caparn (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. There were multiple issues with the Form F2 - Unfair Dismissal Application (Form F2) filed by the Applicant in that the application did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act and the Applicant had not served the minimum employment period. The Applicant advised that he commenced employment with Fortescue Metals Group / Fortescue Future Industries on 8 November 2021 and that he was notified of his dismissal on 6 May 2022.

1. On 27 May 2022, the Commission contacted the Applicant on his nominated telephone number and advised him that based on the information provided in the Form F2 he had not served the minimum employment period. The Commission suggested the Applicant seek legal advice on this issue. The Commission also advised the Applicant that payment of the filing fee or a completed fee waiver form was required.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. The correspondence also advised that on the basis of the information contained in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. A copy of the correspondence was also sent to the Applicant’s representative.

1. As the required documentation was not received, on 8 June 2022 the Commission made a final attempt to contact the Applicant on his nominated telephone number. The Applicant did not answer the call.  A voicemail message was left requesting he contact the Commission to make payment and to discuss his application.  The Commission also advised the matter was at risk of being dismissed.

1. On 3 June 2022 the Applicant sent email correspondence to the Commission as follows:

“Could someone please contact me on relation to this matter? I believe the fee is still
  outstanding.”

1. The Commission attempted to contact the Applicant on his nominated telephone number however the Applicant failed to answer the call. A voicemail message was left requesting the Applicant contact the Commission to make payment.

1. To date, the Applicant nor his representative have not provided the requested information and has not paid the filing fee.

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 the Applicant has not completed the required minimum employment period, his application has no reasonable prospects of success.

1. Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed under ss.587(1)(a) and (c) of the FW Act. An order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR743110

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<PR743109>