Mitchell West v RSEA Pty Ltd

[2023] FWC 2217

[2023] FWC 2217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mitchell West
v

RSEA Pty Ltd

(U2023/7140)

COMMISSIONER BISSETT MELBOURNE, 4 SEPTEMBER 2023

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

1. On 3 August 2023 Mr Mitchell West 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 West advised in his Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with RSEA Pty Ltd on 27 February 2023 and that he was notified of his dismissal on 12 July 2023.

1. On 8 August 2023 the Commission contacted Mr West on his nominated telephone number. The Commission advised Mr West that he had not served the minimum employment period. Mr West confirmed the dates on Form F2 are correct and he lodged the application because of the reason of dismissal. Mr West then terminated the call.

1. Later that day the Commission emailed correspondence to Mr West’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 West 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 the application may be dismissed without further notice. An SMS notification was also sent to Mr West’s nominated telephone number requesting that he contact the Commission.

1. As the required documentation was not received, on 22 August 2023 the Commission attempted to contact Mr West on his nominated telephone number. Mr West answered the telephone but then disconnected it. The Commission then again attempted to contact Mr West on his nominated telephone number. However, Mr West could not be reached. A voicemail message was left advising that if he does not contact the Commission by close of business on 22 August 2023 to confirm withdrawal of his application or with documents or other evidence supporting his claim that he had served the minimum employment period, the matter may be dismissed without further notice.

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

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 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.

1. As Mr West 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
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