Paul Galiazzo v BM Sydney Building Materials Pty Ltd

[2021] FWC 5497

[2021] FWC 5497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Galiazzo
v
BM Sydney Building Materials Pty Ltd
(U2021/7266)

COMMISSIONER BISSETT MELBOURNE, 3 SEPTEMBER 2021

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

[1] On 16 August 2021, Mr Paul Galiazzo (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).

[2] The Form F2 – Unfair Dismissal Application (Form F2) filed by Mr Francisco Gutierrez, Avondale Lawyers, (Applicant’s Representative) stated that the Applicant commenced employment with BM Sydney Building Materials Pty Ltd on 6 April 2021 and that his dismissal took effect on 21 July 2021.

[3] On 17 August 2021, the Commission contacted the Applicant’s Representative and informed him that based on the information in the Form F2 the Applicant did not meet the minimum employment period. The Applicant’s representative advised the Commission that the Applicant wished to proceed with his application. The Commission also mentioned to the Applicant’s representative the general protections provisions under s.365 of the FW Act. The Applicant’s representative said that he would speak to the Applicant and contact the Commission with further instructions on how to proceed with the matter.

[4] Later that day, the Commission emailed correspondence to the Applicant and his representative’s nominated email address advising that based on the information provided in the Form F2, the Applicant had not served the minimum employment period according to the dates noted in the Form F2. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As neither the required documentation was received or phone contact made, on 31 August 2021, the Commission again contacted the Applicant’s Representative on their nominated telephone number to discuss the application. As the Applicant’s representative was unavailable the Commission left a detailed message with “Josh” advising that the application was at risk of being dismissed and requested that the Applicant’s representative contact the Commission by no later than 1 September 2021 to discuss the application. Josh said he understood and would relay the message to the Applicant’s representative.

[6] To date, neither the Applicant nor his representative have replied to the Commission’s correspondence.

[7] Section 382 of the FW 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 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.

[9] Section 587(1) of the FW Act provides that:

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.

[10] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success. It is surprising that the Applicant’s representative allowed the application to be made in circumstances where, on the information provided on the Form F2, the Applicant is not eligible to make such a claim.

[11] Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

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