DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Tolba Abdelsalam
v
G and Z Form Group Pty Ltd
(U2017/11903)

DEPUTY PRESIDENT DEAN

SYDNEY, 4 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 7 November 2017, Mr Tolba Abdelsalam made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Abdelsalam’s application states that he commenced employment with G and Z Form Group Pty Ltd (the Respondent) on 21 September 2017 and that his dismissal took effect on 26 October 2017.

[3] On 13 November 2017, correspondence was sent to Mr Abdelsalam confirming that based on the information contained in his application, it appeared he had not served the minimum employment period. The correspondence required Mr Abdelsalam to file in the Fair Work Commission a statement to support his claim of having served the minimum employment period within seven days. Mr Abdelsalam was advised that if there was no response, his application may be dismissed without further notice.

[4] On 15 November 2017, Mr Abdelsalam sent an email to the Commission which stated: “I need to continue.”

[5] On 15 November 2017, my Chambers responded to Mr Abdelsalam’s correspondence with the following email:

“Dear Mr Abdelsalam

Thank you for your email.

To continue with your application you have been directed to provide a written statement, with any documents or evidence to support your claim that you have served the minimum employment period, by no later than close of business on Monday, 20 November 2017.

Please refer to the attached letter [dated 13 November 2017] for an explanation about the minimum employment period. I also refer you to the Commission’s Unfair Dismissals Benchbook which can be found on our website:

in particular at page 53 – What is the minimum period of employment.”

[6] On 23 November 2017, further correspondence was sent to Mr Abdelsalam noting that he had previously been directed to provide a statement by 20 November 2017 but had not done so. Mr Abdelsalam was given until 4pm on 28 November 2017 to respond. Mr Abdelsalam was advised that his application may be dismissed in the absence of any response.

[7] To date, Mr Abdelsalam has not provided any response to the Commission’s correspondence of 15 and 23 November 2017 nor has he sought any extension of time to so.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[9] Section 383 of the Act sets out the minimum employment period:

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.

[10] Section 587(1) of the Act provides:

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

[11] In the circumstances of this matter, I am satisfied Mr Abdelsalam has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.
[12] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mr Tolba Abdelsalam v G and Z Form Group Pty Ltd

[2017] FWC 6415

4 DECEMBER 2017

DECISION