Manuel Yanze v Cairns Carline Mufflets

[2023] FWC 3355

[2023] FWC 3355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Manuel Yanze
v

Cairns Carline Mufflets

(U2023/10586)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 27 October 2023 Mr Manuel Yanze 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 Yanze advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Cairns Carline Mufflets (the Respondent) on 18 September 2023 and that his dismissal took effect on 9 October 2023.

1. On 8 November 2023, the Commission attempted to contact Mr Yanze on his nominated telephone number. A voicemail message was left advising Mr Yanze that the dates of employment provided in his Form F2 suggested that he had not served the minimum employment period. It was requested that Mr Yanze contact the Commission. Later that day, the Commission emailed correspondence to Mr Yanze’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Yanze 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. On 20 November 2023, as the required documentation was not yet received, the Commission attempted to contact Mr Yanze on his nominated telephone number. However, Mr Yanze could not be reached. A voicemail message was left advising Mr Yanze that he may not be eligible to make an application for relief from unfair dismissal. It was requested that Mr Yanze contact the Commission urgently, otherwise his matter would be at risk of dismissal via a published decision. To date Mr Yanze has not replied to the Commission’s correspondence.

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 prospect of success.

1. As the material before the Commission indicates Mr Yanze has not 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] PR769436.

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