Louis Byrne v The Nowhere Group Pty Ltd

[2024] FWC 954

[2024] FWC 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Louis Byrne
v

The Nowhere Group Pty Ltd

(U2024/3050)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

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

1. On 17 March 2024, Mr Louis Byrne 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).

1. Mr Byrne advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with The Nowhere Group Pty Ltd (the Respondent) on 18 October 2023 and that he was notified of his dismissal on 14 March 2024.

1. On 21 March 2024, the Commission attempted to contact Mr Byrne on his nominated telephone number. A voicemail message was left advising him that on the basis of the information provided in his Form F2, he may not have served the minimum employment period and requesting that Mr Byrne contact the Commission. Later that day the Commission emailed correspondence to Mr Byrne’s nominated email address advising him that, on the basis of the information provided in his Form F2, he may not have served the minimum employment period. The correspondence directed Mr Byrne to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days his application may be dismissed without further notice.

1. Mr Byrne replied to the Commission’s email on 21 March 2024, stating: “I must have been confused by the website, its not very clear for casual employees. So I must be employed for at least 12 months by a small business for things like being fired due to cleaning to be deemed unfair? Ok.”. The Commission attempted to contact Mr Byrne on his nominated telephone number in order to respond to his email, however, Mr Byrne could not be reached. A voicemail was left requesting that Mr Byrne contact the Commission because his email did not advise the Commission as to his intentions regarding his application, Mr Byrne was also warned that, if he did not advise the Commission regarding his intentions for his application, his matter would likely be dismissed.

1. As no further response was received from Mr Byrne, on 4 April 2024 the Commission attempted to contact him on his nominated telephone number. However, Mr Byrne could not be reached. A voicemail message was left requesting that Mr Byrne contact the Commission. To date Mr Byrne has not made any further contact with the Commission.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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.

1. 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 prospects of success.

1. As the material before the Commission does not indicate that Mr Byrne has completed the required minimum employment period under the FW Act, I am satisfied the 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 with this decision.

DEPUTY PRESIDENT

[1] PR773447.

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<PR773446>