Karl Hapke v Kleenheat Gas

[2021] FWC 6084

[2021] FWC 6084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karl Hapke
v
Kleenheat Gas
(U2021/7621)

COMMISSIONER BISSETT MELBOURNE, 8 OCTOBER 2021

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

[1] On 27 August 2021, Mr Karl Hapke (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).

[2] The Applicant advised in the Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Kleenheat Gas on 21 March 2021 and that his dismissal took effect on 24 August 2021.

[3] On 30 August 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss his application however the Applicant failed to answer the call. A voicemail message was left advising the Applicant that on the basis of the information provided in the Form F2, he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising him that on the basis of the information provided in the Form F2, he 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. An SMS notification was also sent to the Applicant’s nominated telephone number, requesting that he contact the Commission in regard to his application.

[5] As the required documentation was not received, on 16 September 2021 the Commission again attempted to contact the Applicant on his nominated telephone number to discuss his application however the Applicant could not be reached. A voicemail message was left requesting he contact the Commission urgently as his application was at risk of being dismissed.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[7] 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.

[8] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

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.

[9] 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 prospects of success.

[10] Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

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