Ore Tosun v Dimension Data Australia Ltd or NTT T/A Dimension Data

[2013] FWC 5992

[2013] FWC 5992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ore Tosun
v
Dimension Data Australia Ltd or NTT T/A Dimension Data
(U2013/10086)

COMMISSIONER DEEGAN CANBERRA, 21 AUGUST 2013

Application for relief from unfair dismissal - jurisdiction - minimum employment period not satisfied - application dismissed.

[1] Mr Ore Tosun (the applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) on 31 May 2013 alleging he had been unfairly dismissed by Dimension Data Australia Ltd (the employer).

[2] The relevant sections of the Act provides as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

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.

[3] The application form (Form F2) filed by the applicant indicated that the applicant was employed on 22 November 2012 and dismissed on 13 May 2013, a period of less than six months. Records show that, on 27 June 2013, the Conciliator handling the matter sent an email informing the applicant that the minimum employment period as prescribed by s.383 of the Fair Work Act 2009 (the Act) must be satisfied in order for the Commission to have jurisdiction to deal with his application. The email also requested for the applicant to advise the Commission if he wished to proceed with his application. In response to the email, the applicant advised that he would still like to proceed. The matter was subsequently referred for formal proceedings.

[4] On 17 July 2013, a letter was sent from Chambers to the applicant by email and express post to the same effect but further advised that the Commission intends to dismiss his application unless he could provide evidence indicating that he has completed the relevant minimum employment period by 5:00pm Wednesday 31 July 2013.

[5] As the applicant failed to provide any evidence by the required date, an email was sent on 5 August 2013 informing the applicant that if the necessary evidence is not provided by 5:00pm Friday 9 August 2013, his application will be dismissed and the matter closed.

[6] The application form completed by the applicant in this matter disclosed that he had not been employed for the relevant minimum employment period. The applicant has been given every opportunity to demonstrate that the information in the application is incorrect and has failed to do so. In the circumstances I must find that the applicant has not satisfied the relevant minimum employment period.

[7] As the applicant has not satisfied the minimum employment requirement he is not a person protected from unfair dismissal and the Fair Work Commission has no jurisdiction to deal with the application.

[8] An order [PR540565] dismissing the application is published separately.

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