Mr Dillon Ammerlaan v SERCO Citizen Services Pty Ltd

[2024] FWC 2377

[2024] FWC 2377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Dillon Ammerlaan
v

SERCO Citizen Services Pty Ltd

(U2024/7892)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 SEPTEMBER 2024

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

1. Mr Dillon Ammerlaan applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 9 July 2024.

1. Mr Ammerlaan stated in his unfair dismissal application (Form F2) that his employment with SERCO Citizen Services Pty Ltd (the Respondent) commenced on 15 April 2024 and that his effective dismissal date occurred on 19 June 2024.

1. On 12 July 2024, the Commission attempted to contact Mr Ammerlaan on his nominated telephone number. The Commission informed Mr Ammerlaan that serving the minimum employment period is required in order to be protected by unfair dismissal under the Act. The information provided in his Form F2 suggested that he may not have served the minimum employment period to be protected from unfair dismissal under the Act. Mr Ammerlaan confirmed the dates of his employment as being the same as those provided in his Form F2. The Commission asked Mr Ammerlaan if he would like to discontinue his matter. Mr Ammerlaan did not advise that he would like to discontinue his application and hung up the phone call.

1. Later that day, the Commission again attempted to contact Mr Ammerlaan on his nominated telephone number. The Commission again requested Mr Ammerlaan to confirm whether he would like to discontinue his application. Mr Ammerlaan did not confirm and again hung up the phone call.

1. Shortly afterwards on the same day, the Commission emailed correspondence to Mr Ammerlaan’s nominated email address advising him that he had not served the applicable minimum employment period based on the information that he had provided in his Form F2. The correspondence directed Mr Ammerlaan to file any documentation to support any claim that he had served the applicable minimum employment period under the Act. That correspondence also warned Mr Ammerlaan that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

1. On the same day, a SMS notification was sent to Mr Ammerlaan’s nominated mobile number requesting him to contact the Commission.

1. The Commission attempted to contact Mr Ammerlaan on his nominated telephone number on 24 July 2024. The call was answered but Mr Ammerlaan did not confirm whether he wished to discontinue his application before hanging up the phone call.

1. The Commission did not receive any documentation in support of Mr Ammerlaan’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 12 July 2024.

1. The Commission made a final attempt to contact Mr Ammerlaan on his nominated telephone number on 31 July 2024. The call was not answered and a voicemail was left requesting Mr Ammerlaan to urgently contact the Commission in relation to his unfair dismissal application.

1. Mr Ammerlaan did not respond and has not responded to the Commission’s attempts to contact him in relation to his Form F2.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. To be protected from unfair dismissal, a person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer. The material before the Commission indicates that Mr Ammerlaan has not satisfied this requirement and, therefore, I am satisfied that his application has no reasonable prospects of success. As such, Mr Ammerlaan’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR778913.

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