Marco Herrigan v BWA Group Services Pty Ltd T/A Bankwest

[2023] FWC 2945

[2023] FWC 2945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marco Herrigan
v

BWA Group Services Pty Ltd T/A Bankwest

(U2023/8888)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 NOVEMBER 2023

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

1. On 15 September 2023, Mr Marco Herrigan (the Applicant) 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. The Applicant advised in his Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with BWA Group Services Pty Ltd (the Respondent) on 6 June 2023 and that his dismissal took effect on 5 September 2023.

1. On 20 September 2023, the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant could not be reached. A voicemail message was left requesting that the Applicant contact the Commission. Later that day, the Commission emailed correspondence to the Applicant’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 the Applicant to file any documents or other evidence to support his claim that he had served the required minimum employment period. This correspondence also warned that if he did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As no further correspondence was received, on 26 September 2023, the Commission attempted to contact the Applicant on his nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant contact the Commission in relation to his application. On 9 October 2023, the Commission made a final attempt to contact the Applicant on his nominated telephone number. The Applicant could not be reached, and a voicemail was left requesting that the Applicant contact the Commission in relation to his application. To date, the Applicant has not provided any further correspondence to 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.

1. 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 indicated the Applicant 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] PR768156.

Printed by authority of the Commonwealth Government Printer

<PR768154>