Mitchell Murko v JDW fabrication

[2022] FWC 1175

[2022] FWC 1175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mitchell Murko

v

JDW fabrication

(U2022/3075)

COMMISSIONER BISSETT MELBOURNE, 19 MAY 2022

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

1. On 11 March 2022, Mr Mitchell Murko 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).

1. Mr Murko advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with JDW fabrication on 4 November 2021 and that his dismissal took effect on 4 March 2022.

1. On 14 March 2022, the Commission attempted to contact Mr Murko on his nominated telephone number. A voicemail message was left advising Mr Murko that he had not served the minimum employment period and to make contact with the Commission.

1. Later that day, the Commission emailed correspondence to Mr Murko’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Murko to file any documents/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.

1. As the required documentation was not received, on 1 April 2022, the Commission attempted to contact Mr Murko via their nominated telephone number. However, he could not be reached. A voicemail message was left requesting him to confirm his employment dates as they appear to fall short of the minimum employment period. A request was also made for Mr Murko to provide this information by the close of business on 4 April 2022 or his matter would be at risk of being dismissed.

1. To date, Mr Murko has not replied to the Commission’s correspondence.

1. 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.

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

1. 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.

1. 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 prospect of success.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Murko 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 to this effect will be issued shortly.

COMMISSIONER

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