Michael Nassif v HPS Hydraulic Plumbing Service

[2016] FWC 1486

[2016] FWC 1486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Nassif
v
HPS Hydraulic Plumbing Service
(U2016/463)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal.

[1] On 4 February 2016, Mr Michael Nassif made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Nassif advised that he commenced employment with HPS Hydraulic Plumbing Service in August 2015 and that his dismissal took effect on 22 January 2016.

[3] On 5 February 2016, correspondence was sent to Mr Nassif pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Nassif to advise the Fair Work Commission within 14 days whether he wished to proceed with his application.

[4] On 17 February 2016, an email was sent to Mr Nassif again pointing out that he had not served the minimum employment period.

[5] On 22 and 29 February 2016, telephone calls were made to Mr Nassif and messages were left on voicemail for him to contact the Commission.

[6] On 22 February 2016, further correspondence was sent to Mr Nassif allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] To date, Mr Nassif has not replied to that correspondence.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[9] Section 383 of the Act sets out the minimum employment period:

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.

[10] In the circumstances of this matter, I am satisfied Mr Nassif has not completed the required minimum employment period and his application has no reasonable prospects of success.

[11] Section 587(1) of the Act provides:

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 prospects of success.

[12] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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