Manoj Acharya v Southern Star Research Pty Ltd
[2023] FWC 2299
•8 SEPTEMBER 2023
| [2023] FWC 2299 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Manoj Acharya
v
Southern Star Research Pty Ltd
(U2023/7325)
| COMMISSIONER BISSETT | MELBOURNE, 8 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
On 8 August 2023, Mr Manoj Acharya (the Applicant) made an application to the Commission in which he sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act (FW Act). In his Form F2 application, the Applicant said he commenced employment with Southern Star Research Pty Ltd (the Respondent) on Wednesday 21 June 2023 and that his employment was terminated with effect from Tuesday 8 August 2023.
On 13 August 2023, a staff member from the Commission emailed the Applicant correspondence acknowledging receipt of his application. This correspondence also advised that it appeared, from the information provided in the Form F2 application, that the Applicant had not met the minimum employment period and that, to continue his case, he would have to show that he had been employed for the minimum employment period specified in the FW Act. The Applicant was asked to provide such evidence within 14 days.
On 25 August 2023, a staff member of the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant did not answer the call. A voicemail message was left for the Applicant advising him that, if he did not provide the further information sought by 28 August 2023, his application may be dismissed.
Later that day, the Applicant sent an email to the Commission in which he said: ‘I would like to continue with the case. Even though I have not completed 6 months in the company I still feel the matter is subjective as I have mentioned in my case file.’
The file was subsequently referred to me to determine.
On 4 September 2023, my Chambers sent the following correspondence to the Applicant:
Dear Mr Acharya,
I refer to your application for an unfair dismissal remedy made on 8 August 2023. On 25 August 2023, in correspondence with a Commission staff member, you advised you wished to pursue your application despite being informed you do not satisfy the Minimum Employment Period to be eligible to make an application for unfair dismissal.
Your application has been referred to Commissioner Bissett, National Practice Leader for unfair dismissal matters. The Commissioner advises as follows:
·The Fair Work Act 2009 (FW Act) makes clear that, to be eligible for unfair dismissal, a person must have completed at least 6 months service with the employer (or 12 months for a small business). The Commission has no discretion in relation to this time period. If you are not eligible to make an application, the Commission cannot hear your application.
·On the information you have provided you were not employed for at least 6 months (you commenced employment on 21 June 2023 and your employment was terminated with effect on 8 August 2023, a period less than 7 weeks).
·It is the Commissioner’s preliminary view that your application should be dismissed as it has no reasonable prospect of success.
Given this information, the Commissioner requests advice as to whether you wish to proceed with your application.
If you do intend to proceed, the Commissioner requires you to file submissions as to why she should not dismiss your application pursuant to s.587 of the FW Act on the grounds that it has no reasonable prospect of success as you have not, on the information provided by you and available to the Commission in the first instance, been employed for the minimum engagement period.
Your response to this email is required by 4.00pm Monday, 11 September 2023. Should you fail to reply, your application may be dismissed without further correspondence with you. If you do reply, the Commissioner will consider that correspondence in making her decision as to whether your application should be dismissed.
You can access the relevant provisions in relation to the minimum employment period here, and you can access s.587 of the FW Act in relation to the power of the Commission to dismiss an application here. (Emphasis in original; hyperlinks removed)
On 5 September 2023, my Chambers received an email, which I have accepted as a submission (as sought in the correspondence sent to the Applicant), in which the Applicant said:
· He sought that the Commission ‘or some Higher Authority’ consider exercising some discretion in relation to the minimum employment period as he, otherwise, had no protection as an ‘[e]xperienced [person] joining a new company’.
· That the decision to dismiss him was ‘highly personal,’ made by a person who disliked him and that, given time, he could have ‘debugged the project’.
Consideration
Section 382 of the FW Act sates as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
…
Section 383 defines the minimum employment period:
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.
As is apparent from the wording of s.382(a), to be protected from unfair dismissal a person must have completed the minimum employment period, with that period defined in s.383 of the FW Act. No discretion is afforded to the Commission in relation to the minimum employment period regardless of the asserted merit or otherwise of the application. If an applicant has not completed the minimum employment period they are not protected from unfair dismissal and an application seeking a remedy for such a dismissal cannot be considered by the Commission.
In this case, the Applicant has completed less than 7 weeks’ employment with the Respondent. He falls well short of completing the minimum employment period. The Commission has no discretion and there is nothing the Applicant has provided to the Commission which suggests he has completed the minimum employment period. The application, for this reason, cannot succeed.
Section 587(1) of the FW Act states 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.
…
In the circumstances before me, I am not satisfied that the Applicant has completed the minimum employment period. His application cannot succeed and, for this reason, I have determined to dismiss the application pursuant to s.587(1)(c) of the FW Act.
COMMISSIONER
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