Liam Malachi v Barmera Café Espresso

[2022] FWC 80

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Liam Malachi

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

Printed by authority of the Commonwealth Government Printer

The applicant, Liam Malachi, sought relief from unfair dismissal by the respondent, Barmera Café Espresso, through an application made at the Fair Work Commission. The dispute centred on whether the applicant had completed the requisite minimum employment period before his dismissal and whether the dismissal was justified under section 587 of the Fair Work Act. The Commission was required to determine these issues and consider the application on its merits.

The primary legal issue before the Commission was whether Liam Malachi had fulfilled the minimum employment period of six months to be eligible for unfair dismissal claims. Additionally, the Commission had to assess if the dismissal was genuinely justified under section 587 of the Fair Work Act, particularly if it was initiated by the Commission itself. The applicant argued that he had completed the minimum employment period and that his dismissal was unfair. The respondent maintained that the applicant had not met the requisite employment period and that the dismissal was justified.

In its decision, the Commission considered the evidence regarding the applicant's employment period and the circumstances of the dismissal. The Commission found that the applicant had indeed fulfilled the minimum employment period and examined whether the dismissal was justified under section 587. After reviewing the evidence, the Commission concluded that the dismissal was unfair and granted the applicant relief from the dismissal. Consequently, the Commission ordered the respondent to reinstate the applicant to his previous position.

The Fair Work Commission ordered Barmera Café Espresso to reinstate Liam Malachi to his former role. The Commission determined that the applicant had met the minimum employment period requirement and that the dismissal was unfair. The decision highlights the importance of meeting the eligibility criteria for unfair dismissal claims and the stringent scrutiny applied to dismissals under section 587 of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established