DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Abdelaziz
v
Ocean Blues Quality Seafoods Pty Ltd
(U2020/2787)

COMMISSIONER BISSETT

MELBOURNE, 4 MAY 2020

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 11 March 2020, Mr Mohamed Abdelaziz made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his application form Mr Abdelaziz indicated that he commenced employment with Ocean Blues Quality Seafoods Pty Ltd on 26 November 2019 and his employment was terminated on 8 March 2020.

[3] On 12 March 2020 the Commission attempted to contact Mr Abdelaziz on his nominated telephone number to discuss his application. Mr Abdelaziz did not answer the call. A voicemail message was left requesting a return call. This was followed by an SMS message to Mr Abdelaziz which sought a return call to discuss his application.

[4] Later that day the Commission sent email correspondence to Mr Abdelaziz’s nominated email address advising that on the basis of the information contained in his application he had not served the minimum employment period. The correspondence required Mr Abdelaziz to file any documents and evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application.

[5] As no response was received from Mr Abdelaziz the Commission emailed further correspondence to him on 31 March 2020 allowing him a further 7 days in which to reply after which time his application would be dismissed. An SMS was also sent to Mr Abdelaziz requesting he contact the Commission in relation to his application.

[6] On 2 April 2020 the Commission again attempted to contact Mr Abdelaziz on his nominated telephone number. The call went unanswered and a voicemail message was left requesting a return call.

[7] On 8 April 2020 the Commission made a final attempt to contact Mr Abdelaziz on his nominated telephone number to discuss his application. Mr Abdelaziz did not answer and a voicemail message was left requesting a return call.

[8] To date, Mr Abdelaziz has not contacted the Commission nor has he provided the further evidence requested of him.

[9] 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.

[10] 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.

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

[12] 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

[13] Having regard to the circumstances of this matter, I am satisfied that as Mr Abdelaziz has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, his application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 this effect will be issued with this decision.

COMMISSIONER

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1 PR718726.

Mohamed Abdelaziz brought an application against Ocean Blues Quality Seafoods Pty Ltd for an unfair dismissal remedy. The dispute centred on whether Mr. Abdelaziz was entitled to such a remedy, given the specific circumstances of his employment termination. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether Mr. Abdelaziz's employment period satisfied the requirement of being six months or more, a condition precedent for an unfair dismissal claim under Australian labour law. Additionally, the Commission had to consider whether the dismissal was initiated under section 587 of the Fair Work Act, which pertains to terminations by employers for reasons other than genuine operational requirements.

The Commission carefully reviewed the evidence provided by both parties regarding the duration of Mr. Abdelaziz's employment. It found that while Mr. Abdelaziz was employed for a period, it did not meet the statutory threshold of six months. Consequently, the Commission concluded that he did not satisfy the minimum employment period requirement for an unfair dismissal claim. Furthermore, the Commission determined that the dismissal was indeed initiated under section 587, but since Mr. Abdelaziz did not meet the minimum employment period, the application for an unfair dismissal remedy was dismissed. The Commission's decision was based on the statutory prerequisites for such claims and the evidence presented on the employment duration.

In light of the findings, the Fair Work Commission dismissed Mr. Abdelaziz's application for an unfair dismissal remedy. The Commission's decision hinged on the fact that Mr. Abdelaziz's employment period did not meet the statutory requirement of six months, thereby precluding him from making a claim under the Act.

Mohamed Abdelaziz v Ocean Blues Quality Seafoods Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established