Navjeet Dhillon v 39 Plus T/A 39 Plus

[2020] FWC 2337

[2020] FWC 2337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Navjeet Dhillon
v
39 Plus T/A 39 Plus
(U2020/2953)

COMMISSIONER BISSETT MELBOURNE, 8 MAY 2020

Application for an unfair dismissal remedy.

[1] On 12 March 2020 Navjeet Dhillon (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).

[2] The Applicant advised in their Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with 39 Plus T/A 39 Plus (Respondent) on 20 February 2020 and that their dismissal took effect on 2 March 2020. The application was also incomplete in that the prescribed fee was not paid and the fee waiver form that was filed was not complete as the last page was missing and the form was not signed.

[3] On 16 March 2020 the Commission contacted the Applicant on their nominated telephone number. The Applicant advised that they had worked at the Respondent for 2 weeks. The Commission advised that based on this information it appeared that they had not served the minimum employment period. The Applicant was also advised that the fee waiver form they had submitted was missing the last page and was not signed.

[4] Also on that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or evidence to support the claim that they had served the required minimum employment period. That correspondence also advised that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On 31 March 2020 the Commission sent further email correspondence to the Applicant advising that, based on the information they had provided, their application did not appear to be valid and the Commission has no jurisdiction to deal it. That correspondence advised that if the Applicant did not contact the Commission within 7 days, their application would be determined on the material before the Commission.

[6] Also on that day, an SMS notification was sent to the Applicant’s nominated telephone number requesting that they contact the Commission regarding their application.

[7] To date, the required fee has not been paid and a completed waiver form has not been received. The Applicant has also not disputed that they have not met the minimum employment period.

[8] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[9] 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.

[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] In the circumstances of this matter, I am satisfied that they Applicant has not completed the required minimum employment period to be protected from unfair dismissal.

[12] 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 prospects of success.

[13] Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, their application has no reasonable prospect of success. Additionally, as the application was not accompanied by the prescribed fee or a completed fee waiver form, it was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) and (c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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