Mark Bahnisch v Study Play Care Pty Ltd

[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

[1] PR773528.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mark Bahnisch v Study Play Care Pty Ltd, the applicant, Mr Bahnisch, sought a remedy for unfair dismissal against his former employer, Study Play Care Pty Ltd, pursuant to s.394 of the Fair Work Act 2009. Mr Bahnisch alleged that his dismissal was unfair and that he had been dismissed on 29 February 2024. The Respondent, Study Play Care Pty Ltd, did not contest the dismissal but raised concerns about the applicant’s eligibility for protection under the Act due to the length of his employment. The Fair Work Commission was tasked with determining whether Mr Bahnisch had completed the minimum employment period required to seek relief under the Act.

The primary legal issue before the Commission was whether Mr Bahnisch had fulfilled the minimum employment period as stipulated in the Fair Work Act. Specifically, the Commission had to determine whether Mr Bahnisch had been employed for at least six months if the employer was not classified as a small business employer, or one year if the employer was a small business employer. Given that the Commission did not receive any documentation or evidence from Mr Bahnisch to support his claim that he had completed the requisite employment period, the Commission needed to assess the likelihood of Mr Bahnisch's application succeeding. The Commission also had to consider whether the application met the procedural requirements of the Act.

The Deputy President, Clancy, concluded that the application had no reasonable prospect of success because Mr Bahnisch had not provided any evidence to demonstrate that he had served the minimum employment period as required by the Fair Work Act. Given this, the Deputy President dismissed the application under s.587(1)(c) of the Act. This dismissal was made at the initiative of the Commission, as Mr Bahnisch had not responded to multiple attempts by the Commission to contact him and request further information. Consequently, the application for relief from unfair dismissal was dismissed, and an order was made to that effect.

In conclusion, the Fair Work Commission dismissed the application for relief from unfair dismissal brought by Mr Bahnisch against Study Play Care Pty Ltd. The decision was based on the lack of evidence provided by Mr Bahnisch to establish that he had completed the minimum employment period required to seek relief under the Act. An order was issued in line with the decision, confirming the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established