Miguel Ignacio Faundez Valdes v Macdue Pty Ltd T/A BP Colac

[2020] FWC 3530

[2020] FWC 3530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miguel Ignacio Faundez Valdes
v
Macdue Pty Ltd T/A BP Colac
(U2020/8218)

COMMISSIONER BISSETT MELBOURNE, 7 JULY 2020

Application for an unfair dismissal remedy.

[1] On 15 June 2020 Mr Miguel Ignacio Faundez Valdes 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).

[2] Mr Faundez Valdes advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Macdue Pty Ltd T/A BP Colac on 27 January 2020 and that his dismissal took effect on 13 June 2020.

[3] On 16 June 2020 the Commission attempted to contact Mr Faundez Valdes on his nominated telephone number. A voicemail message was left requesting that Mr Faundez Valdes return the Commission’s call as soon as possible to discuss the issues with his application.

[4] Later that day, the Commission emailed correspondence to Mr Faundez Valdes’s nominated email address advising Mr Faundez Valdes that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Faundez Valdes to file any documents or evidence to support his claim that he had served the required minimum employment period. That correspondence also advised that if Mr Faundez Valdes did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Faundez Valdes’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 29 June 2020 the Commission attempted to contact Mr Faundez Valdes on his nominated telephone number. However, Mr Faundez Valdes could not be reached. A voicemail message was left advising that the matter was at risk of being dismissed as he does not appear to meet the minimum employment period. The Commission encouraged Mr Faundez Valdes to return the call to advise if he wished to continue with the application or to discuss the matter further.

[6] To date, Mr Faundez Valdes has not replied to the Commission’s correspondence.

[7] Section 382 of the FW 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Mr Faundez Valdes has not completed the required minimum employment period.

[10] Section 587(1) of the FW Act provides that:

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.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Faundez Valdes has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

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