Khaled Odal v Capital Transport

[2023] FWC 482

[2023] FWC 482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Khaled Odal
v

Capital Transport

(U2023/892)

COMMISSIONER BISSETT MELBOURNE, 27 FEBRUARY 2023

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

1. On 3 February 2023 Mr Khaled Odal 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. Mr Odal advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Capital Transport in September 2022 and that his dismissal took effect on 13 January 2023.

1. On 7 February 2023 the Commission attempted to contact Mr Odal on his nominated telephone number. There was no provision to leave a voice message, only a number for return call. A text message was left to advise Mr Odal that the Commission tried to contact him.

1. Later that day the Commission sent correspondence to Mr Odal’s nominated email address advising Mr Odal that, based on the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Odal to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

1. As the required documentation was not received, on 21 February 2023 and 22 February 2023 the Commission attempted to contact Mr Odal on his nominated telephone number. However, Mr Odal could not be reached.

1. To date Mr Odal has not replied to the Commission’s correspondence.

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 Mr Odal 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 Mr Odal 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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