Liam Clarke v RAAFA

[2023] FWC 321

[2023] FWC 321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Liam Clarke
v

RAAFA

(U2023/365)

COMMISSIONER BISSETT MELBOURNE, 7 FEBRUARY 2023

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

1. On 12 January 2023 Mr Liam Clarke 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 Clarke advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with RAAFA “approximately four months ago” and that his dismissal took effect on 23 December 2022.

1. On 13 January 2023 the Commission attempted to contact Mr Clarke on his nominated telephone number. A voicemail message was notifying Mr Clarke that he may not have met the minimum employment period. The general protections dismissal application was explained. The voicemail requested the applicant call the Commission to discuss further.

1. Later that day the Commission emailed correspondence to Mr Clarke’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 Clarke to file any documents 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 25 January 2023 the Commission attempted to contact Mr Clarke on his nominated telephone number. However, Mr Clarke could not be reached. A voicemail message was left stating that, as it appeared the minimum employment period was not met, Mr Clarke would not be able to make this application. It was also noted that section 3.1 of the Form F2 (which relates to the reasons for dismissal given) was missing. The voicemail message requested the Applicant return the call as soon as possible as the matter was at risk of being dismissed.

1. To date the Applicant 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 Clarke 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 Clarke 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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