Lima Malisi v NW Labour Hire No 2 Pty Ltd
[2022] FWC 3198
•23 DECEMBER 2022
| [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
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