Mukhalad Rubaiee v Millennium Hi-Tech Group Pty Ltd

[2024] FWC 2697

[2024] FWC 2697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mukhalad Rubaiee
v

Millennium Hi-Tech Group Pty Ltd

(U2024/9136)

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 Mukhalad Rubaiee applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 7 August 2024.

1. Mr Rubaiee stated in his unfair dismissal application (Form F2) that his employment with Millennium Hi-Tech Group Pty Ltd (the Respondent) commenced on 19 February 2024 and that his dismissal took effect on 30 July 2024.

1. On 11 August 2024, the Commission emailed correspondence to Mr Rubaiee’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 Rubaiee 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 Rubaiee that if he did not contact the Commission within 14 days (Monday, 26 August 2024), his application might be dismissed without further notice.

1. On 12 August 2024, the Commission attempted to contact Mr Rubaiee on his nominated telephone number. A voicemail message was left requesting Mr Rubaiee to urgently 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.

1. The Commission did not receive any documentation in support of Mr Rubaiee’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 11 August 2024.

1. The Commission made a final attempt to contact Mr Rubaiee on his nominated telephone number on 29 August 2024. The call was not answered and a voicemail was left requesting Mr Rubaiee to urgently contact the Commission in relation to his application, outlining to him that the dates of employment provided in his Form F2 indicated the minimum employment period was not met, and informing him that his application was at risk of being dismissed if no contact was received by close of business on 30 August 2024.

1. To date, Mr Rubaiee 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 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 Rubaiee has not satisfied this requirement and, therefore, I am satisfied that his application has no reasonable prospects of success. As such, Mr Rubaiee’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] PR779720.

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