Mohamed Abdelaziz v Ocean Blues Quality Seafoods Pty Ltd

[2020] FWC 2272

[2020] FWC 2272

FAIR WORK COMMISSION

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

(c) the application has no reasonable prospects of success.

[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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