Liam Malachi v Barmera Café Espresso
[2022] FWC 80
•19 January 2022
| [2022] FWC 80 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Liam Malachi
v
Barmera Café Espresso
(U2021/10993)
| cOMMISSIONER bISSETT | MELBOURNE, 19 January 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 30 November 2021, Mr Liam Malachi (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 the Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Barmera Café Espresso on 10 November 201[sic] and that his dismissal took effect on 28 November 2021.
On 6 December 2021 the Commission listed the matter for conciliation on 8 February 2022.
Later that day the Respondent filed their Form F3 – Employer Response to Unfair Dismissal Application. In its response the Respondent raised a jurisdictional objection on the grounds that the Applicant did not have the requisite minimum employment period.
On 7 December 2021 the Commission telephoned the Applicant and explained that based on the information provided in the Form F2 he did not meet the minimum employment period. The Applicant confirmed he commenced employment with the Respondent on 10 November 2021 and that he wished to proceed with the application.
On 8 December the Commission cancelled the conciliation and sent email correspondence to the Applicant’s nominated email address advising the Applicant 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 by 22 December 2021, the application may be dismissed without further notice. The Applicant did not respond.
To date the Applicant has not provided the requested documentation.
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.
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.
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 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.
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
[1] PR737570
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