Martin Walsh v Leela Care Services Summary

[2023] FWC 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Martin Walsh
v

Leela Care Services

(U2023/2142)

COMMISSIONER BISSETT

MELBOURNE, 6 APRIL 2023

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

On 15 March 2023 Mr Martin Walsh 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 Walsh advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Leela Care Services on 21 November 2022 and he was notified of his dismissal on 14 March 2023.

On 20 March 2023 the Commission contacted Mr Walsh on his nominated telephone number. The Commission advised Mr Walsh that he had not served the minimum employment period. The Commission also advised that there are other options including General Protection claims, and that there is also the option of free legal advice. Mr Walsh stated he would have a look at the Commission website and confirm his choice with the Commission.

Later that day the Commission emailed correspondence to Mr Walsh’s nominated email address advising him that, on the basis of the information provided in the Form F2, had not served the minimum employment period. The correspondence directed Mr Walsh 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. An SMS notification was also sent to Mr Walsh’s nominated telephone number requesting that he contact the Commission.

No documentation or further correspondence was received from Mr Walsh. Therefore, on 5 April 2023 the Commission attempted to contact Mr Walsh on his nominated telephone number. However, he could not be reached. A voicemail message was left requesting that Mr Walsh call back the Commission to advise how he would like to proceed.

To date Mr Walsh 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. I am satisfied Mr Walsh has not completed the required minimum employment period.

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 Mr Walsh has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Martin Walsh v Leela Care Services, the applicant, Mr Martin Walsh, applied to the Fair Work Commission for a remedy for unfair dismissal pursuant to the Fair Work Act 2009 (FW Act). Mr Walsh, who commenced employment with Leela Care Services on 21 November 2022, was notified of his dismissal on 14 March 2023. The central legal issues the Commission was required to address involved whether Mr Walsh had completed the requisite minimum employment period and whether his application for unfair dismissal had a reasonable prospect of success. The Commission was tasked with determining whether the dismissal was unfair under the FW Act and whether Mr Walsh's application could proceed under the stipulated conditions.

The Commission found that Mr Walsh had not completed the required minimum employment period as stipulated by the FW Act. Section 382 of the FW Act provides protection from unfair dismissal only if the employee has completed a certain period of employment. According to Section 383, the minimum employment period is six months if the employer is not a small business employer. As Mr Walsh had been employed for less than six months, he did not meet the minimum employment period requirement. The Commission also noted that no further evidence or documentation was provided by Mr Walsh to substantiate that he had met this requirement. Consequently, the Commission concluded that Mr Walsh's application had no reasonable prospect of success, leading to its dismissal under Section 587(1)(c) of the FW Act.

Given the findings, the Commission dismissed Mr Walsh's application for unfair dismissal on the basis that he had not completed the required minimum employment period. The Commission communicated this decision to Mr Walsh through various correspondences and attempted to contact him to confirm his next steps, but received no response. As a result, the Commission determined that the application could be dismissed without further notice. The final orders of the Commission were that the application for unfair dismissal was dismissed due to the absence of the minimum employment period and lack of reasonable prospect of success.

Martin Walsh v Leela Care Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established