Khateebulla Mirza v Transport for NSW

[2023] FWC 23

[2023] FWC 23

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Khateebulla Mirza
v

Transport for NSW

(U2022/10578)

COMMISSIONER BISSETT MELBOURNE, 4 JANUARY 2023

Application for an unfair dismissal remedy

1. On 3 November 2022 Mr Khateebulla Mirza 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 Mirza advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Transport for NSW on 2 May 2022 and he was notified of his dismissal on 18 October 2022. Mr Mirza also failed to pay the filing fee or seek a waiver and it did not appear, on the face of his application, that he was employed by a national system employer.

1. On 23 November 2022 the Commission attempted to contact Mr Mirza on his nominated telephone number. A voicemail message was left requesting Mr Mirza contact the Commission regarding the minimum employment period.

1. On 5 December 2022 the Commission emailed correspondence to Mr Mirza’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 Mr Mirza to file any documents/evidence to support his claim that they 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 20 December 2022 the Commission attempted to contact Mr Mirza on his nominated telephone number. However, Mr Mirza could not be reached. A voicemail message was left requesting that he contact the Commission urgently.

1. To date Mr Mirza 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 Mirza 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 Mirza has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act. For this reason I do not need to deal with the non-payment of the filing fee or if he worked for a national system employer.

COMMISSIONER

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