Peter Tye v Coreserve Australia Pty Limited

[2022] FWC 67

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Tye

Coreserve Australia Pty Limited

(U2021/12121)

cOMMISSIONER bISSETT

MELBOURNE, 18 JANUARY 2022

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

On 23 December 2021, Mr Peter John Tye 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 Tye advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Coreserve Australia Pty Limited on 25 November 2021 and that his dismissal took effect on 10 December 2021.

On 23 December 2021, the Commission attempted to contact/contacted Mr Tye on their nominated telephone number. A voicemail message was left requesting Mr Tye make contact with the Commission to clarify their dates of employment.

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

As the required documentation was not received, on 12 January 2022 the Commission attempted to contact Mr Tye via their nominated telephone number. However, Mr Tye could not be reached. A voicemail message was left advising that there was a follow up call to confirm his employment dates. Further, a request was made for Mr Tye to contact the Commission to discuss.

To date, Mr Tye 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 of at least the minimum employment period.

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.

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 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 prospects of success.

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

[1] PR737536

Printed by authority of the Commonwealth Government Printer

Peter Tye, the applicant, applied to the Fair Work Commission for relief from an unfair dismissal by Coreserve Australia Pty Limited, the respondent. The applicant sought to overturn a dismissal that occurred during a probationary period. The case was heard by the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009. The Commission was required to determine whether the dismissal was procedurally fair and whether it was for a valid reason related to the applicant's capacity or conduct.

The legal issues centred on whether the dismissal complied with the procedural requirements of the Fair Work Act, specifically concerning the minimum employment period. Additionally, the Commission had to assess if the dismissal was justified and whether it was for a valid reason. The applicant argued that the dismissal was unfair due to procedural deficiencies, while the respondent maintained that the dismissal was procedurally fair and justified.

The Commission considered the evidence presented by both parties and examined the applicable legal standards. It found that the applicant had not met the minimum employment period required to be eligible for unfair dismissal remedies. Consequently, the dismissal did not breach any procedural requirements. Furthermore, the Commission determined that the respondent had valid reasons to dismiss the applicant, which were related to his capacity or conduct. Given these findings, the Commission dismissed the application for relief from unfair dismissal.

The Fair Work Commission ruled that the applicant's dismissal was procedurally fair and justified, and therefore, the application for relief from unfair dismissal was dismissed. The Commission did not grant any remedy to the applicant.

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