DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muhammed Rizwan Ali Suleman
v
Directfreight
(U2021/4183)

COMMISSIONER BISSETT

MELBOURNE, 4 JUNE 2021

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

[1] On 14 May 2021, Mr Muhammed Rizwan Ali Suleman 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).

[2] Mr Suleman advised in the Unfair Dismissal Application (Form F2) that he commenced employment with Directfreight on 29 April 2021 and that his dismissal took effect on 14 May 2021.

[3] On 18 May 2021, the Commission attempted to contact Mr Suleman on his nominated telephone number. A generated message advised the call could not be completed at this time. No voicemail option was available to leave a message requesting Mr Suleman contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Suleman’s nominated email address advising Mr Suleman that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Suleman to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if Mr Suleman did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Suleman’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 1 June 2021 the Commission attempted to contact Mr Suleman via his nominated telephone number. However, Mr Suleman could not be reached. A voicemail message was left requesting Mr Suleman to contact the Commission to confirm employment period. Mr Suleman was advised to contact the Commission by the close of business on 2 June 2021, or the Commission may consider dismissing his application.

[6] On 1 June 2021, Mr Suleman contacted the Commission helpline to discuss his employment period. Mr Suleman advised that he began with the employer in early August 2020 and was dismissed and rehired. Mr Suleman was advised to submit documentation to prove that he worked the minimum employment period and that the Respondent may object to the application, the call was disconnected. The Commission then attempted to contact Mr Suleman on his nominated telephone number and a voicemail message left requesting Mr Suleman to contact the Commission.

[7] To date, Mr Suleman has not replied to the Commission’s correspondence or otherwise contacted the Commission.

[8] Section 382 of the FW 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] In the circumstances of this matter, I am satisfied Mr Suleman has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] 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.

[11] Section 587(1) of the FW Act provides that:

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

[12] Having regard to the circumstances of this matter I am satisfied that as Mr Suleman has not completed the required minimum employment period under the FW Act, his application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Muhammed Rizwan Ali Suleman, sought relief from unfair dismissal against Directfreight. Suleman alleged that his dismissal was unjust and sought remedy under the Fair Work Act 2009. The dispute centred on the minimum employment period required for an unfair dismissal claim and whether the dismissal was initiated by the Fair Work Commission. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue was whether Suleman had met the minimum employment period requirement for an unfair dismissal claim. Additionally, the court had to determine if the dismissal was indeed initiated by the Fair Work Commission as claimed. The applicant argued that he had been employed for the requisite period and that his dismissal was unfair, warranting remedy. Directfreight contended that the applicant did not meet the minimum employment period and that the dismissal was procedurally correct.

The court examined the evidence regarding the duration of Suleman's employment and found that he had not been employed for the statutory minimum period. Consequently, the court concluded that the Fair Work Commission did not have jurisdiction to hear the unfair dismissal claim. The dismissal was found to be procedurally fair, as it complied with the requirements set forth in the Fair Work Act 2009. Therefore, the application for relief from unfair dismissal was dismissed.

The court ordered that the applicant's application be dismissed and that there be no order as to costs. This decision highlighted the importance of meeting the minimum employment period requirement for unfair dismissal claims and underscored the procedural safeguards in employment law.

Muhammed Rizwan Ali Suleman v Directfreight

DECISION

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