Nathan Mouat v Nathan Mouat

[2021] FWC 2862

[2021] FWC 2862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Mouat
v
Nathan Mouat
(U2021/3503)

COMMISSIONER BISSETT MELBOURNE, 19 MAY 2021

Application for an unfair dismissal remedy.

[1] On 22 April 2021 Mr Nathan Mouat (the Applicant) 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). Mr Mouat stated that he had been unfairly dismissed on 14 April 2021 and named the Respondent as ‘Nathan Mouat’.

[2] Mr Mouat advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 26 October 2021 and that his dismissal took effect on 14 April 2021.

[3] On 23 April 2021 the Commission attempted to contact Mr Mouat on his nominated telephone number. A voicemail message was left requesting he contact the Commission to discuss his application.

[4] Later that day, the Commission emailed correspondence to Mr Mouat’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Mouat 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 Mouat did not contact the Commission, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 5 May 2021 the Commission attempted to contact Mr Mouat via his nominated telephone number. However, Mr Mouat could not be reached. A voicemail message was left advising that the matter may be dismissed.

[6] To date, Mr Mouat has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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

(c) the application has no reasonable prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Mouat 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 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR729974>

 1   PR729975.