Mr Steven McCallum v A&S Better Facility

[2024] FWC 3259

[2024] FWC 3259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Steven McCallum

v

A&S Better Facility

(U2024/10552)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 NOVEMBER 2024

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

1. Mr Steven McCallum applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 6 September 2024.

1. Mr McCallum stated in his unfair dismissal application (Form F2) that his employment with A&S Better Facility (the Respondent) commenced in March 2024 and his dismissal took effect on or around 20 August 2024.

1. On 12 September 2024, the Commission contacted Mr McCallum on his nominated telephone number. This was 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 call was answered and Mr McCallum stated that he was unsure whether he had been dismissed by the Respondent. Mr McCallum also stated that he had not yet received a separation certificate from the Respondent and that he was seeking further advice.

1. On 13 September 2024, the Commission emailed correspondence to Mr McCallum’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 McCallum 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 McCallum that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

1. Later that day, a SMS notification was sent to Mr McCallum’s nominated mobile number requesting him to contact the Commission.

1. The Commission did not receive any documentation in support of Mr McCallum’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period.

1. The Commission made a final attempt to contact Mr McCallum on his nominated telephone number on 7 October 2024. The call was not answered and a voicemail was left requesting Mr McCallum to urgently contact the Commission in relation to his Form F2 application.

1. Mr McCallum has not responded to the Commission’s attempts to contact him in relation to his Form F2 application.

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 meaning of 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. 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 to be protected from unfair dismissal. The material before the Commission indicates that Mr McCallum has not satisfied this requirement and, therefore, I am persuaded that his application has no reasonable prospects of success. As such, Mr McCallum’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] PR781613.

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