Ramesh Gautam v Achieve Australia T/A Disability Support

[2019] FWC 6049

[2019] FWC 6049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ramesh Gautam
v
Achieve Australia T/A Disability Support
(U2019/8611)

DEPUTY PRESIDENT DEAN SYDNEY, 3 SEPTEMBER 2019

Application for an unfair dismissal remedy – application dismissed.

[1] On 5 August 2019, Mr Ramesh Gautam made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Gautam advised that he commenced employment with Achieve Australia T/A Disability Support on 17 April 2019 and that his dismissal took effect on 1 August 2019.

[3] Section 382 of the 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.

[4] Section 383 of the Act sets out the minimum employment period:

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.

[5] On 6 August 2019, correspondence was sent to Mr Gautam indicating that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Gautam to advise the Commission within 14 days whether he wished to proceed with his application. The Commission also attempted to contact Mr Gautam by telephone, however this was unsuccessful and a voice message was left.

[6] On 21 August 2019 further correspondence was sent to Mr Gautam allowing a further 7 days in which to reply, after which time the application may be dismissed. The Commission also attempted to contact the Mr Gautam by telephone, however this was unsuccessful and a voice message was left. Mr Gautam then telephoned the Commission and stated that letter dated 21 August was the first contact he had received from the Commission. Mr Gautam verified his phone number was correct, and advised he wished to seek legal advice regarding his application.

[7] On 28 August 2019, a final attempt to contact Mr Gautam to discuss his application was made without success.

[8] Section 587(1) of the Act provides:

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.

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

[10] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to that effect will be issued.

DEPUTY PRESIDENT

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