Mohamed Akabai v Khazma Windows and Doors T/A Aluminium Factory

[2018] FWC 3120

[2018] FWC 3120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamed Akabai
v
Khazma Windows and Doors T/A Aluminium Factory
(U2018/3726)

DEPUTY PRESIDENT DEAN SYDNEY, 1 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 10 April 2018, Mr Mohamed Akabai made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Akabai’s application states that he commenced employment with Khazma Windows and Doors T/A Aluminium Factory (Khazma) on 25 May 2016 and that his dismissal took effect on 30 March 2018.

[3] On 26 April 2018, Khazma filed an Employers Response (form F3) objecting to the application on the grounds that Mr Akabai had not met the minimum employment period. Khazma submitted that Mr Akabai had previously been employed by it in 2016, however that employment relationship ended in August 2017 when Mr Akaabai did not return from a period of leave and commenced employment with another employer. He was then
re-employed on 2 January 2018 until his dismissal on 20 March 2018.

[4] On 17 May 2018, correspondence was sent to Mr Akabai indicating that, based on the information contained in the Employer Response, it appeared he may not have served the minimum employment period. The correspondence required Mr Akabai to file a statement within seven days to support his claim of having served the minimum employment period.

[5] On 25 May 2018, correspondence was sent to Mr Akabai noting that he had previously been directed to file a statement in support of his claim that he had served the minimum employment period but had not done so. Mr Akabai was given until 4pm, 29 May 2018, to respond. Mr Akabai was advised that in the absence of any material being received, his application may be dismissed.

[6] On 30 May 2018, Mr Akabai was contacted by telephone and advised that unless a statement was received that day his application would be dismissed.

[7] To date, Mr Akabai has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] Section 383 of the Act sets out the minimum employment period:

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.

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

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] In the circumstances of this matter, I am satisfied Mr Akabai has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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