Osman Ibrahim v Gransolar Construction Australia Pty Ltd

[2023] FWC 2941

[2023] FWC 2941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Osman Ibrahim
v

Gransolar Construction Australia Pty Ltd

(U2023/9056)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 NOVEMBER 2023

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

1. On 19 September 2023, Mr Osman Ibrahim (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).

1. Mr Ibrahim advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Gransolar Construction Australia Pty Ltd (Respondent) on 28 August 2023 and that his dismissal took effect on 8 September 2023.

1. On 25 August 2023, the Commission emailed correspondence to Mr Ibrahim’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Ibrahim 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.

1. On 6 October 2023 the Commission attempted to contact Mr Ibrahim on the telephone number nominated in his application, however the telephone number provided was not connected. As the required documentation was not received on 17 October 2023, the Commission emailed Mr Ibrahim’s nominated email address advising him that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Ibrahim to file any documents or other evidence to support his claim that he had served the required minimum employment period, by close of business on 18 October 2023, otherwise his application would likely be dismissed without further notice. To date Mr Ibrahim 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.

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 the material before the Commission indicates Mr Ibrahim has not completed the required minimum employment period under the FW Act, I am satisfied 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] PR768145.

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<PR768144>