Peter Kubiena v Nunawading Auto Pty. Ltd
[2023] FWC 1781
•21 JULY 2023
| [2023] FWC 1781 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Kubiena
v
Nunawading Auto Pty. Ltd
(U2023/5676)
| COMMISSIONER BISSETT | MELBOURNE, 21 JULY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 26 June 2023 Mr Peter Kubiena 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).
Mr Kubiena advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Nunawading Auto Pty. Ltd on 20 March 2023 and that his dismissal took effect on 5 June 2023.
On 28 June 2023, the Commission emailed correspondence to Mr Kubiena’s nominated email address advising Mr Kubiena that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Kubiena 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.
On 1 July 2023, Mr Kubiena sent an email to the Commission providing his employment contract. That contract confirmed that he had commenced employment on 20 March 2023.
In response to this email, on 3 July 2023 the Commission attempted to contact Mr Kubiena on his nominated telephone number to notify him that his employment does not meet the minimum employment period. However, Mr Kubiena could not be reached and no facility to leave a voicemail was available.
Later that day, an email was sent to Mr Kubiena’s nominated email address in reply to the email Mr Kubiena had sent 1 July 2023. This email explained what the minimum employment period is and advised him that, based on the information provided, this requirement has not been met.
As documentation demonstrating Mr Kubiena had served the minimum employment period was not received, on 17 July 2023 the Commission attempted to contact Mr Kubiena on his nominated telephone number. However, Mr Kubiena could not be reached and no facility to leave a voicemail was available.
To date Mr Kubiena has not replied to the Commission’s correspondence.
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 Kubiena has not completed the required minimum employment period.
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.
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.
As Mr Kubiena has not completed the required minimum employment period under the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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