Mark Bahnisch v Study Play Care Pty Ltd
[2024] FWC 982
•23 APRIL 2024
| [2024] FWC 982 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Bahnisch
v
Study Play Care Pty Ltd
(U2024/2415)
| 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.
On 4 March 2024 Mr Mark Bahnisch 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).
Mr Bahnisch advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Study Play Care Pty Ltd (the Respondent) on 29 January 2024 and that his dismissal took effect on 29 February 2024.
On 18 March 2024, the Commission attempted to contact Mr Bahnisch on his nominated telephone number. A voicemail message was left requesting he contact the Commission. Later that day, the Commission emailed correspondence to Mr Bahnisch’s nominated email address advising him that, on the basis of the information provided in the Form F2, he may not have served the minimum employment period. The correspondence directed Mr Bahnisch 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 the application may be dismissed without further notice. An SMS notification was also sent to Mr Bahnisch’s nominated telephone number requesting that he contact the Commission.
As the required documentation was not received, on 2 April 2024 the Commission attempted to contact Mr Bahnisch on his nominated telephone number. However, Mr Bahnisch could not be reached. A voicemail message was left requesting that Mr Bahnisch contact the Commission and again advising him that on the basis of the information provided in his Form F2, he may not have served the minimum employment period. To date Mr Bahnisch has not replied to the Commission’s correspondence.
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.
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.
As the material before the Commission does not indicate Mr Bahnisch 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
<PR773527>
[1] PR773528.
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