Lima Malisi v NW Labour Hire No 2 Pty Ltd

[2022] FWC 3198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lima Malisi
v

NW Labour Hire No 2 Pty Ltd

(U2022/10839)

COMMISSIONER BISSETT

MELBOURNE, 23 DECEMBER 2022

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

On 11 November 2022 Mr Lima Malisi 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).

Mr Malisi advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with NW Labour Hire No 2 Pty Ltd in May 2022 and that his dismissal took effect on 8 November 2022.

On 14 November 2022 the Commission sent correspondence to Mr Malisi’s nominated email address advising him that the Commission needed to know the precise date his employment had commenced as it appeared that he may not have served the minimum employment period. The correspondence directed Mr Malisi to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned Mr Malisi that if he did not contact the Commission within 14 days the application may be dismissed without further correspondence to him .

As the required documentation was not received, on 29 November 2022 the Commission attempted to contact Mr Malisi on his nominated telephone number. However, Mr Malisi could not be reached. A voicemail message was left requesting that he contact the Commission.

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

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.

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 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.

In the circumstances where I am satisfied that Mr Malisi has not completed the minimum employment period and has failed to respond to the Commission, I have determined that his application has no reasonable prospect of success.

As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Lima Malisi v NW Labour Hire No 2 Pty Ltd, Mr Malisi applied to the Fair Work Commission for relief from unfair dismissal. Mr Malisi alleged he was dismissed by NW Labour Hire No 2 Pty Ltd on 8 November 2022. The Commission was required to determine if Mr Malisi had satisfied the minimum employment period requirement of six months under the Fair Work Act 2009. The Commission also needed to determine if Mr Malisi's application had a reasonable prospect of success. The Commission found that Mr Malisi had not provided evidence that he had been employed for the required minimum employment period of six months. Despite multiple attempts to contact Mr Malisi to request this evidence, he did not respond. As a result, the Commission determined that Mr Malisi's application had no reasonable prospect of success and dismissed the application under section 587(1)(c) of the FW Act.

The key legal issue before the Commission was whether Mr Malisi had completed the six-month minimum employment period as required by section 382 of the FW Act. The Commission noted that section 382 provides that a person is protected from unfair dismissal if they have completed a minimum employment period. However, as Mr Malisi did not provide evidence that he had been employed for six months, and the Commission was unable to contact him to request this evidence, the Commission determined that Mr Malisi had not satisfied this requirement.

The Commission also considered if Mr Malisi's application had a reasonable prospect of success. Despite multiple attempts to contact Mr Malisi to request evidence of his employment period, he did not respond. As Mr Malisi had not satisfied the minimum employment period requirement and had failed to respond to the Commission, the Commission determined that his application had no reasonable prospect of success. The Commission therefore dismissed the application under section 587(1)(c) of the FW Act.

The Commission ordered that Mr Malisi's application be dismissed. The dismissal was pursuant to section 587(1)(c) of the FW Act, which provides that the Commission may dismiss an application if it has no reasonable prospect of success. In this case, the Commission found that Mr Malisi's application had no reasonable prospect of success due to his failure to satisfy the minimum employment period requirement and his failure to respond to the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established