[2017] FWC 1056

The attached document replaces the document previously issued with the above code on 22 February 2017.

Corrections as follows:

MNC Code included [2017] FWC 1056

PR number included at base of decision (PR590440)

Para [13] reference to Order (PR590440) should read (PR590441)

Denise Jelfs

Associate to SENIOR DEPUTY PRESIDENT O’CALLAGHAN

23 February 2017

[2017] FWC 1056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Prodromos
v
Comwire IT Pty Ltd
(U2017/619)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 22 FEBRUARY 2017

Application for an unfair dismissal remedy – minimum employment period not met.

[1] On 20 January 2017, Mr Michael Prodromos made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 20 January 2017, a telephone call was made to Mr Prodromos and a message was left to contact the Fair Work Commission (the Commission) to complete questions and clarify duplicate contact information that have been provided for the Applicant and Respondent contact information in his application. An email was also sent to Mr Prodromos requesting this information.

[3] On 21 January 2017, Mr Prodromos advised by email that he commenced employment with Comwire IT Pty Ltd on 4 January 2017 and that his dismissal took effect on 20 January 2017. Mr Prodromos emailed confirmation of his contact address details but not the Respondent in his email to the Commission.

[4] On 24 January 2017, a follow up telephone call was made to Mr Prodromos and a message left pointing out that based on the information provided it appears that he does not satisfy the minimum employment period. Email correspondence was also sent advising that the Commission has not yet received the correct contact address information for the Respondent. A search identified a contact address for the Respondent – Comwire IT Pty Ltd, and Mr Prodromos was asked to confirm if this was the correct address and contact information. This correspondence required Mr Prodromos to advise the Commission within 14 days as to whether he wished to proceed with his application.

[5] Mr Prodromos was also advised that if he wished to discontinue his application he should sign and return a Form F50 – Notice of Discontinuance to the Commission.

[6] On 25 January 2017, email correspondence was received from Mr Prodromos confirming correct contact address details for the Respondent. A further telephone call was made and another message left to contact the Commission and advised if he wished to proceed with his application.

[7] On 3 February 2017, a further attempt was made to telephone Mr Prodromos. However the number had now been disconnected. Further correspondence was sent to Mr Prodromos allowing a further 7 days in which to reply, after which time the application would be dismissed.

[8] To date, Mr Prodromos has not filed a Notice of Discontinuance with the Commission or replied to the correspondence.

[9] 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.

[10] 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.”

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

[12] 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

[13] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order (PR590441) to this effect will be issued shortly.

Printed by authority of the Commonwealth Government Printer

Michael Prodromos, the applicant, sought an unfair dismissal remedy against Comwire It Pty Ltd, the respondent, due to his termination of employment. The Fair Work Commission was the tribunal tasked with resolving the dispute. The primary legal issue the Commission had to decide was whether the applicant had satisfied the criteria for an unfair dismissal claim, specifically if the minimum employment period requirement was met. Additionally, the Commission had to assess if the termination was justified under the provisions of the Fair Work Act 2009.

The Commission began by confirming the applicant's employment period and determined it did not meet the minimum requirement of six months of continuous employment. The Commission held that the applicant did not qualify for the protection against unfair dismissal because he had not worked for the respondent for the requisite duration. Consequently, the Commission dismissed the application on the grounds that the statutory conditions for an unfair dismissal claim were not satisfied. The decision was based on the clear statutory requirements regarding the minimum employment period and the lack of evidence to support a claim of unjust termination.

The Commission's decision was final, with no orders made in favour of the applicant. The Commission reiterated that the statutory criteria for an unfair dismissal claim were not met, and thus, no remedy was available to the applicant under the Fair Work Act 2009.

Michael Prodromos v Comwire It Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established