Mr Louie Geen Tumagcao v Sydney Tools Pty Ltd

[2024] FWC 2679

[2024] FWC 2679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Louie Geen Tumagcao
v

Sydney Tools Pty Ltd

(U2024/9695)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

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

1. Mr Louie Geen Tumagcao applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 20 August 2024.

1. Mr Tumagcao stated in his unfair dismissal application (Form F2) that his employment with Sydney Tools Pty Ltd (the Respondent) commenced on 7 March 2024 and that his dismissal took effect on 20 August 2024.

1. On 26 August 2024, the Commission attempted to contact Mr Tumagcao on his nominated telephone number. The call was not answered and a voicemail message was left requesting Mr Tumagcao to contact the Commission. This is because 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. The voicemail message explained that Mr Tumagcao’s consent would be required to discontinue the matter.

1. Shortly afterwards on that same day, the Commission emailed correspondence to Mr Tumagcao’s nominated email address informing 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 Tumagcao 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 Tumagcao that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

1. The Commission made a final attempt to contact Mr Tumagcao on his nominated telephone number on 6 September 2024. The call was not answered and a voicemail was left requesting Mr Tumagcao to urgently contact the Commission in relation to his application. The voicemail message informed Mr Tumagcao that his application was at risk of being dismissed and that a decision on the Commission website would be published to that effect if no contact was received by close of business on 9 September 2024.

1. Mr Tumagcao did not respond and has not responded to the Commission’s attempts to contact him in relation to his Form F2 application. The Commission has not received any documentation in support of Mr Tumagcao’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 26 August 2024.

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 Tumagcao has not satisfied this requirement and, therefore, I am satisfied that his application has no reasonable prospects of success. As such, Mr Tumagcao’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] PR779688.

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