Lochlan Kalemba v Trusstech SA Pty Ltd

[2017] FWC 1850

[2017] FWC 1850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Lochlan Kalemba
v
Trusstech SA Pty Ltd
(U2017/2085)

COMMISSIONER HAMPTON ADELAIDE, 6 APRIL 2017

Application for an unfair dismissal remedy – minimum employment period not completed – application dismissed

[1] On 27 February 2017, Mr Lochlan Kalemba lodged an application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Trusstech SA Pty Ltd.

[2] Mr Kalemba’s application form stated that he commenced his employment with the respondent on 21 November 2016 and that his dismissal took effect on 13 February 2017.

[3] Section 383 of the Act sets out the minimum employment period required for an applicant employee to be eligible to lodge an unfair dismissal application:

“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.”

[4] On 1 March 2017 the Commission wrote to Mr Kalemba via the contact details that were provided in his application, including to his nominated representative, advising that based upon the information given in his application it appeared he had not completed the minimum employment period required under the Act. Mr Kalemba was directed to provide to the Commission, within 14 days, any evidence and/or submissions that supported a claim that he had completed the minimum employment period.

[5] On 21 March 2017, the Commission unsuccessfully attempted to speak with Mr Kalemba by telephone. A voicemail message was left requesting that he contact the Commission. Further correspondence was also sent from the Commission to Mr Kalemba and his nominated representative requiring that he respond to the direction in the letter of 1 March 2017 within 7 days or the application would be determined on the information already provided to the Commission.

[6] No response was received from Mr Kalemba or his nominated representative. Given that Mr Kalemba has made no attempt to engage with the Commission, despite numerous opportunities to do so, it is appropriate to deal with the application on the basis of the material presently before the Commission.

[7] Section 382 of the Act provides that unless an applicant employee has completed a period of employment with his or her employer of at least the minimum employment period, they will not be a person who is protected from unfair dismissal and not eligible to bring an unfair dismissal application. Section 390(1)(a) of the Act also confirms that an applicant employee cannot be found to have been unfairly dismissed if they are not “protected” within the meaning of the relevant part of the legislation.

[8] As outlined earlier the employment period stated in Mr Kalemba’s application is a period less than 3 months. That is clearly less than the relevant necessary minimum employment period.

[9] Having regard to the circumstances of this matter, I am satisfied that Mr Kalemba has not completed the minimum employment period required under the Act. The application is therefore beyond the jurisdiction of the Commission and should be dismissed.

[10] I am also satisfied that Mr Kalemba has made no attempt to engage with the Commission and has, in effect, abandoned his application. As a result, it also has no reasonable prospect of success. 1

[11] In all of these circumstances, it is appropriate to dismiss the s.394 unfair dismissal application. An Order 2 to this effect will be issued shortly.

COMMISSIONER

 1   s.587(1)(c) of the Act.

 2   PR591514.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR591513>