Mr Henry Williams v Uber Australia Pty Ltd
[2023] FWC 702
•23 MARCH 2023
| [2023] FWC 702 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Henry Williams
v
Uber Australia Pty Ltd
(U2023/1285)
| COMMISSIONER BISSETT | MELBOURNE, 23 MARCH 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal at the Commission’s initiative under s.587.
On 17 February 2023 Mr Henry Williams 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).
Mr Williams advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Uber Australia Pty Ltd on 1 November 2022 and that his dismissal took effect on 28 January 2023.
On 21 February 2023 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was unable to be left, and an automated message mentioned incoming call restrictions applied.
Later that day the Commission emailed correspondence to Mr Williams’ nominated email address advising Mr Williams that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Williams to file any documents/evidence to support a 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 Williams’s nominated telephone number requesting that he contact the Commission.
As the required documentation was not received, on 7 March 2023 the Commission attempted to contact Mr Williams on his nominated telephone number. However, Mr Williams could not be reached. A voicemail message was unable to be left, and an automated message mentioned incoming call restrictions applied.
An inbound telephone call was received from applicant on 21 February 2023. The Commission explained the requirement of the minimum employment period and the eligibility and premise of a general protections application. The applicant indicated he would seek legal advice and get back to Commission as soon as possible.
Later that day, another inbound telephone call was received by the applicant asking about the application fee. The Commission informed him that payment was due but also the applicant must decide whether to continue with the submitted Form F2 as the applicant acknowledged he did not meet the minimum employment period. The Commission informed the applicant he could discontinue the application and could submit a fee waiver application Form F80 if the applicant was experiencing financial hardship. The applicant indicated they were still waiting to hear back from their legal representative.
A further inbound telephone call was received from applicant on 22 February 2023. The applicant asked why he had to pay a lodgement fee as he believed his lawyer lodged his application. The Commission informed Mr Williams he lodged his application by email on 17 February 2023 and had not advised of any lawyer or paid agent representing him. Mr Williams advised he had spoken with a lawyer and was advised by them that they would take care of his application. The applicant confirmed his employment began on 1 November 2022 and ended on 28 January 2023. The Commission informed the applicant that he did not meet the required minimum employment period. The Commission requested further information of the applicant’s representative but the applicant could not provide the name of the representative. The applicant reiterated he thought that his lawyer would take care of the application, and then terminated the call.
On 7 March 2023, the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was unable to be left, and an automated message mentioned incoming call restrictions applied.
On 21 March 2023 the Commission received another inbound telephone call from the applicant who questioned why he had not heard from the Commission with respect to his application. It was again explained to the applicant that, on the information provided by him, it did not appear that he had completed the minimum employment period. The applicant was also advised that his application was currently before a member of the Commission for decision. The applicant said he would consult with his lawyer to obtain more information.
To date Mr Williams has not replied to the Commission’s correspondence and has not provided evidence that he has completed the minimum employment period necessary to make an application for unfair dismissal.
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 Williams has not completed the required minimum employment period.
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.
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.
As Mr Williams has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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