Nigel Kelly v Northern Star Resources Ltd

[2023] FWC 1179

[2023] FWC 1179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nigel Kelly
v

Northern Star Resources Ltd

(U2023/3607)

COMMISSIONER BISSETT MELBOURNE, 24 MAY 2023

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

1. On 26 April 2023 Mr Nigel Kelly 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 Kelly advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Northern Star Resources Ltd on 6 February 2023 and that their dismissal took effect on 20 March 2023.

1. On 1 May 2023 the Commission attempted to contact Mr Kelly on their nominated telephone number. A voicemail message was left requesting Mr Kelly contact the Commission to discuss the dates of employment at it appeared the minimum employment period had not been met.

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

1. As the required documentation was not received, on 16 May 2023 the Commission attempted to contact Mr Kelly on their nominated telephone number. However, Mr Kelly could not be reached. A voicemail message was left advising that the matter was still incomplete and requested that he contact the Commission to discuss the matter by close of business 17 May 2023, as the dates supplied in his application suggest he had not served the minimum employment period. Otherwise, if no response was received, the matter may be at risk of being dismissed.

1. To date Mr Kelly 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. I am satisfied Mr Kelly has not completed the required 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 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 Mr Kelly 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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