Nathan Dunning v Cap Coast Tyres Pty Ltd

[2024] FWC 996

[2024] FWC 996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Dunning
v

Cap Coast Tyres Pty Ltd

(U2024/1936)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 APRIL 2024

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

1. On 22 February 2024, Mr Nathan Dunning 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).

1. Mr Dunning advised in his Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with Cap Coast Tyres Pty Ltd (the Respondent) on 27 September 2023 and that his dismissal took effect on 31 January 2024.

1. On 23 February 2024, the Commission attempted to contact Mr Dunning on his nominated telephone number. However, Mr Dunning could not be reached. A voicemail message was left requesting that Mr Dunning contact the Commission and provide clarification on his employment dates because on the basis of the dates provided in his Form F2, he may not meet the minimum employment period.

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

1. As the required documentation was not received, on 6 March 2024 the Commission attempted to contact Mr Dunning on his nominated telephone number. However, Mr Dunning could not be reached. A voicemail message was left requesting that Mr Dunning contact the Commission and confirm his employment dates within three business days, otherwise, his matter may be dismissed without further notice. To date, Mr Dunning has not replied to the Commission’s correspondence.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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.

1. Section 587(1) of the FW Act 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 prospect of success.

1. As the material before the Commission indicates Mr Dunning has not completed the required minimum employment period under the FW Act, I am persuaded the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR773555.

Printed by authority of the Commonwealth Government Printer

<PR773554>