Niall Cooke v Outbackspirit
[2023] FWC 1584
•3 JULY 2023
| [2023] FWC 1584 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Niall Cooke
v
Outbackspirit
(U2023/4220)
| COMMISSIONER BISSETT | MELBOURNE, 3 JULY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 16 May 2023 Niall Cooke (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).
The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) and email that they commenced employment with Outbackspirit (the Respondent) in “April” and that their dismissal took effect on 12 May 2023.
On 19 May 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, the Commission required further information in order to determine if the required minimum employment period had been met. The correspondence directed the Applicant to provide more information about the start date of their employment as only the month, ‘April’ was provided. This correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.
On 25 May 2023, the Applicant sent through an email to the Commission, confirming they commenced work with the Respondent in “April 2023”. Although the Applicant sent an additional email with an offer of employment attached that specified an effective start date of 23 April 2023, it is unclear whether the Applicant sought to rely on this document. As the minimum employment issue required further discussion, later that day an SMS notification was sent to the Applicant’s nominated telephone requesting a call back in relation to their incomplete matter.
As the Applicant failed to contact the Commissionin response to the SMS message the Commission attempted to contact the Applicant on their nominated telephone number again on 19 June 2023. The call went unanswered and there was no voicemail facility. Later that day, a second attempt was made to contact the Applicant and a voicemail was left for the Applicant to call the Commission back in relation to the minimum employment issue.
To date the Applicant has not to requests that he call the Commission nor provided any further information in relation to his employment period..
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.
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.
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.
As the Applicant has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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