Olya Mancuso v Endeavor in Home Care

[2024] FWC 1194

[2024] FWC 1194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Olya Mancuso
v

Endeavor In Home Care

(U2024/2820)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2024

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

1. On 12 March 2024, Mr Olya Mancuso 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 Mancuso advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Endeavor In Home Care (the Respondent) on 11 on January 2024 and that his dismissal took effect on 6 March 2024.

1. On 15 March 2024, the Commission attempted to contact Mr Mancuso on his nominated telephone number. The Commission attempted to discuss the minimum employment period with Mr Mancuso, but the call was disconnected mid conversation. The Commission attempted to reconnect Mr Mancuso, but the call could not be connected and no facility to leave a voicemail message was available. Later that day the Commission emailed correspondence to Mr Mancuso’s nominated email address advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Mancuso to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days his application may be dismissed without further notice. An SMS notification was also sent to Mr Mancuso’s nominated telephone number, requesting that he contact the Commission.

1. As the required documentation was not received, on 2 April 2024 the Commission attempted to contact Mr Mancuso on his nominated telephone number. However, Mr Mancuso could not be reached. A voicemail message was left requesting that Mr Mancuso call the Commission back by close of business on 2 April 2024, otherwise his application may be dismissed without further notice. To date, Mr Mancuso has not made further contact with the Commission.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 prospects of success.

1. 
   As the material before the Commission indicates Mr Mancuso has not completed the required minimum employment period under the FW Act, I am persuaded the 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.

DEPUTY PRESIDENT

[1] PR774629.

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