Kamolkoli Saha v Dr Erlich Sem
[2023] FWC 2939
•16 NOVEMBER 2023
| [2023] FWC 2939 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kamolkoli Saha
v
Dr Erlich Sem
(U2023/9270)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 16 NOVEMBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 24 September 2023, Kamolkoli Saha (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 their Form F2 Unfair Dismissal Application (Form F2) that they did not know the exact date they commenced employment with Dr Erlich Sem (Respondent), but that it was at the end of July 2023 and that the effective date of dismissal was 11 September 2023.
On 3 October 2023, the Commission contacted the Applicant on their nominated telephone number. The Commission confirmed with the Applicant that they commenced work with the Respondent on 17 July 2023. The Applicant was informed that, based on the information provided, it appeared they had not met minimum employment period of six months. The Applicant was asked whether they wished to discontinue their application due to not meeting the minimum employment period. The Applicant elected not to discontinue and advised that they wished for their matter to remain open whilst they sought more information.
Later that 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 also warned that if they did not contact the Commission within 14 days, their application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number requesting that they contact the Commission.
On 5 October 2023, the Commission contacted the Applicant on their nominated telephone number. The Commission advised the Applicant that their Fee Waiver application (Form F80) was incomplete and unsigned. During this call, the Applicant informed the Commission that they were still seeking advice and had not yet decided how to proceed in relation to their application not meeting the minimum employment period.
As no further correspondence was received, on 16 October 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 informing the Applicant that the 14-day period to provide documents or other evidence in support of meeting the minimum employment period was almost over and requested that the Applicant contact the Commission.
To date, the Applicant has not provided any further correspondence to the Commission.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.
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 material before the Commission indicates the Applicant has not completed the required minimum employment period under the FW Act, I am satisfied the 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.
DEPUTY PRESIDENT
[1] PR768141.
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