Pinaka Pani Seramsetti v KNAUF Australia
[2023] FWC 556
•7 MARCH 2023
| [2023] FWC 556 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pinaka Pani Seramsetti
v
KNAUF Australia
(U2023/1482)
| COMMISSIONER BISSETT | MELBOURNE, 7 MARCH 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal at the Commission’s initiative under s.587.
On 23 February 2023 Mr Pinaka Pani Seramsetti (the Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Seramsetti alleged he was unfairly dismissed by KNAUF Australia (the Respondent).
Mr Seramsetti advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with the Respondent on 1 August 2022 and that he was notified of his dismissal on 13 January 2023.
Mr Seramsetti’s application was also lodged more than 21 days after his dismissal took effect and on 27 February 2023 he was informed by the Commission that it appeared his application had been lodged out of time.
On 1 March 2023 the application was referred to my chambers. That day correspondence was issued to Mr Seramsetti stating:
Upon review of the file the Commissioner has also identified that, on your application, it does not appear that you have met the minimum employment period necessary to be eligible to make an unfair dismissal application. The Commissioner advises as follows:
·The Fair Work Act 2009 (FW Act) makes clear that, to be eligible for unfair dismissal, a person must have completed at least 6 months service with the employer (your employer not being a small business). The Commission has no discretion in relation to this time period.
·On the information you have provided you were not employed for at least 6 months (you commenced employment on 1 August 2022 and your employment was terminated with effect on 13 January 2023).
·It is the Commissioner’s preliminary view that your application should be dismissed under s.587(1)(c) of the FW Act as it has no reasonable prospect of success.
Mr Seramsetti was directed to file with the Commission any evidence proving that he had completed at least 6 months employment by 6 March 2023.
Later that day Mr Seramsetti provided a submission confirming he commenced employment with the Respondent on 1 August 2022 and that his dismissal took effect on 13 January 2023.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.
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.
On Mr Seramsetti’s own material he is not eligible to make an application for an unfair dismissal remedy. The Commission has no discretion in this matter. The minimum employment period could only be satisfied if he was still employed by the Respondent on 1 February 2023.
As Mr Seramsetti 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 the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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