Peter Cheang v Victorian Electoral Commission

[2022] FWC 3309

[2022] FWC 3309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Cheang
v

Victorian Electoral Commission

(U2022/11232)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

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

1. On 24 November 2022 Mr Peter Cheang 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 Cheang advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Victorian Electoral Commission on 14 November 2022 and he was notified of his dismissal on 15 November 2022.

1. On 25 November 2022 the Commission attempted to contact Mr Cheang on his nominated telephone number. A voicemail message was left requesting he call the Commission.

1. Later that day the Commission sent correspondence to Mr Cheang’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 Cheang 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 the application may be dismissed without further notice.

1. As the required documentation was not received, on 7 December 2022 the Commission attempted to contact Mr Cheang on his nominated telephone number. However, Mr Cheang could not be reached. A voicemail message was left requesting that he call the Commission.

1. To date Mr Cheang 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. I am satisfied Mr Cheang has not completed the required minimum employment period.

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 Mr Cheang has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that his application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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