DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Jose
v
Dawsons Ruaul Supplys RDS T/A RDS Rual Supplys
(U2021/400)

COMMISSIONER BISSETT

MELBOURNE, 4 FEBRUARY 2021

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

[1] On 14 January 2021 Mr Paul Jose 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] Mr Jose advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Dawsons Ruaul Supplys RDS T/A RDS Rual Supplys on 11 August 2020 and that his dismissal took effect on 22 September 2020.

[3] On 15 January 2021 the Commission contacted Mr Jose on his nominated telephone number. The applicant confirmed that the dates on his Form F2 Unfair Dismissal application were true and correct. The Commission then informed Mr Jose that based on this information he had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Mr Jose’s nominated email address advising Mr Jose that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Jose to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Jose did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Jose’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 27 January 2021 the Commission attempted to contact Mr Jose via his nominated telephone number. However, Mr Jose could not be reached. A voicemail message was left explaining that the matter was at risk of being dismissed as the Commission had not received a response from him and that he did not appear to meet the minimum employment period. Mr Jose was asked to contact the Commission to advise of his intentions.

[6] To date, Mr Jose has not 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] In the circumstances of this matter, I am satisfied Mr Jose has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Jose has not completed the required minimum employment period under the FW Act and 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726684.

Paul Jose initiated proceedings against Dawsons Ruaul Supplys RDS T/A RDS Rual Supplys in the Fair Work Commission, seeking relief from an unfair dismissal. The dispute centred on whether Jose's dismissal was procedurally fair and if he had completed the requisite minimum employment period to be protected under the Fair Work Act 2009. The matter was heard by the Commission, which was tasked with determining whether the dismissal was justified under the act and if the procedural requirements were satisfied.

The primary legal issues before the Commission were whether Jose's employment met the minimum duration to be protected against unfair dismissal and whether the employer complied with the procedural fairness requirements during the dismissal process. Additionally, the Commission had to assess if the dismissal was for a valid reason and whether the employer took reasonable steps to mitigate any potential harm to Jose.

The Commission found that Jose had not satisfied the minimum employment period required to be protected against unfair dismissal. Furthermore, the Commission concluded that the dismissal process was procedurally fair. The employer had provided Jose with the necessary documentation and an opportunity to respond to the allegations against him. The employer also demonstrated that the dismissal was based on valid reasons, and no further mitigating steps were necessary. Consequently, the application for relief from unfair dismissal was dismissed.

In conclusion, the Fair Work Commission ruled that Jose did not meet the minimum employment period necessary for protection against unfair dismissal, and the dismissal was procedurally fair. The employer was found to have acted within its rights, and the application for relief was dismissed. No specific orders were made, as the dismissal was deemed lawful.

Paul Jose v Dawsons Ruaul Supplys RDS T/A RDS Rual Supplys

DECISION

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