Nikki Rungarunga v Cape

[2018] FWC 7430

[2018] FWC 7430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nikki Rungarunga
v
Cape
(U2018/11332)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 DECEMBER 2018

Application for an unfair dismissal remedy – application dismissed.

[1] On 3 November 2018, Mr Nikki Rungarunga made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Rungarunga advised that he commenced employment with Cape on 13 August 2018 and that he was notified of his dismissal on 12 October 2018, with the dismissal taking effect on the same day. The Form F2 also contained details of Mr Rungarunga’s representative, and was in fact emailed to the Commission on 3 November 2018 by his nominated representative.

[3] On 5 November 2018, the Commission sent email correspondence to Mr Rungarunga and his representative, via the nominated email addresses on the Form F2, advising that his application indicated he had not been employed for the minimum employment period required under the Act. The correspondence directed Mr Rungarunga to file in the Commission within 14 days any documents or evidence to support his claim of having served the minimum employment period.

[4] Also on 5 November 2018, the Commission attempted to telephone Mr Rungarunga and his representative on the telephone numbers nominated on the Form F2. Neither Mr Rungarunga nor his representative were able to be contacted, and voicemail messages were left for both.

[5] As no material was received from Mr Rungarunga, the Commission sent a final email to him and his representative on 21 November 2018. It was noted that unless Mr Rungarunga or his representative contacted the Commission within seven days with an explanation as to why he had not responded to the direction contained in the correspondence dated 5 November 2018, the application would be determined based on the material before the Commission.

[6] To date, neither Mr Rungarunga nor his representative have responded to the Commission’s correspondence.

[7] Section 382 of the 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 Act sets out the minimum employment period:

“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 Act provides:

“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.”

[10] Having regard to the circumstances of this matter, I am satisfied that as Mr Rungarunga has not completed the required minimum employment period, his application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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