Nathaniel Morehu Joseph Titus Henry v Proserpine Milk Distributors Pty Ltd

[2022] FWC 1152

[2022] FWC 1152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathaniel Morehu Joseph Titus Henry
v

Proserpine Milk Distributors Pty Ltd

(U2022/4350)

COMMISSIONER BISSETT MELBOURNE, 13 MAY 2022

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

1. On 13 April 2022 Mr Nathaniel Morehu Joseph Titus Henry 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 Henry advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Proserpine Milk Distributors Pty Ltd on 30 October 2021 and that his dismissal took effect on 12 April 2022.

1. On 14 April 2022 the Commission attempted to contact Mr Henry on his nominated telephone number, however the call was unanswered. A short voicemail message was left requesting Mr Henry contact the Commission’s helpline number. The matter number was also quoted.

1. Later that day the Commission emailed correspondence to Mr Henry’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 Henry to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Henry did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. On 18 April 2022 Mr Henry emailed documents to the Commission intending to claim that he had served the required minimum employment period. However, the payslips submitted were dated from 30 October 2021 to 1 April 2022. This equates to only five months and two calendar days. Therefore, the six month minimum employment period did not appear to be satisfied. 

1. On 19 April 2022 the Commission attempted to contact Mr Henry by telephone to clarify the employment dates, however the call was unanswered. The Commission requested Mr Henry contact the Commission’s helpline number to discuss the matter further.

1. On 20 April 2022 the again Commission attempted to contact Mr Henry by telephone to confirm his dates of employment, however the call was unanswered. A message-to-text service contact was left advising that the Commission was following up regarding the correspondence Mr Henry submitted on 18 April 2022.

1. Later that day the Commission emailed correspondence to Mr Henry advising him that on the basis of the information provided in the Form F2 and material submitted on 18 April 2022, he had not served the minimum employment period. The correspondence directed Mr Henry to file any further documents/evidence to support his claim that he had served the required minimum employment period by Thursday 28 April 2022.

1. As the required documentation was not received, on 26 April 2022 the Commission attempted to contact Mr Henry by telephone, however he could not be reached. A brief ten-second voicemail message was left requesting Mr Henry urgently contact the Commission. The matter and helpline numbers were also quoted.

1. To date Mr Henry 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 of at least the minimum employment period.

1. 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 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.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Henry 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

[1] PR741576.

Printed by authority of the Commonwealth Government Printer

<PR741575>