Mr Jonathan T Polites v Empire Concrete and Formwork T/A Empire Concrete & Formwork

[2023] FWC 561

[2023] FWC 561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Jonathan T Polites
v

Empire Concrete And Formwork T/A Empire Concrete & Formwork

(U2023/864)

COMMISSIONER BISSETT MELBOURNE, 7 MARCH 2023

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

1. On 6 February 2023 Mr Jonathan T Polites the Applicant 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 Polities alleged he was unfairly dismissed by Empire Concrete And Formwork T/A Empire Concrete & Formwork (the Respondent).

1. Mr Polites advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Empire Concrete And Formwork T/A Empire Concrete & Formwork on or around 18 August 2022 and that he was notified of his dismissal on 3 February 2023.

1. On 7 February 2023 the Commission attempted to contact Mr Polites on his nominated telephone number. A voicemail message was left requesting that he contact the Commission to discuss his application as it appeared he may not have met the minimum employment period.

1. Later that day the Commission emailed correspondence to Mr Polites’ nominated email address advising Mr Polites that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Polites to file any documents/evidence to support his 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.

1. As the required documentation was not received, on 23 February 2023 the Commission attempted to contact Mr Polites on his nominated telephone number. However, Mr Polites could not be reached. A voicemail message was left requesting that he contact the commission by close of business the following day to discuss the minimum employment period.

1. To date Mr Polites has not replied to the Commission’s correspondence.

1. 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 Polites has not completed the required minimum employment period.

1. 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.

1. 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.

1. As Mr Polites 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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