DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Raymond Morgan
v
NRW Pty Ltd
(U2021/10999)

COMMISSIONER BISSETT

MELBOURNE, 22 DECEMBER 2022

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

[1] On 30 November 2021, Mr Raymond Morgan (Applicant) 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).

[2] The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with NRW Pty Ltd through a labour hire company on 16 April 2021 and became a full-time employee on 19 July 2021. The Applicant’s dismissal took effect on 27 November 2021.

[3] On 1 December 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss the application however the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission in regard to his application.

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

[5] On 2 December 2021 the Applicant wrote to the Commission advising that he wished to proceed with application. Following receipt of this correspondence the Commission attempted to contact the Applicant on his nominated telephone number to discuss the application. The Applicant did not answer the call. A voicemail message was left explaining that based on the information providing in the Form F2 the Applicant did not meet the minimum employment period. The voicemail message also warned that if the Applicant did not contact the Commission the application may be dismissed. The Applicant failed to contact the Commission.

[6] On 15 December 2021 the Commission made a final attempt to contact the Applicant on his nominated telephone number to discuss his application. The call went unanswered. A detailed message was left explaining that the Applicant did not meet the minimum employment period and advising that if he does not provide the requested documentation by close of business on 16 December 2021 the Commission may consider dismissing the application. Correspondence to this effect was also emailed to the Applicant.

[7] To date, the Applicant has not provided the required documentation.

[8] 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.

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

[10] 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.

[11] 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

[12] 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

Printed by authority of the Commonwealth Government Printer

1 PR737053

Raymond Morgan brought an application for relief from unfair dismissal against NRW Pty Ltd, asserting that he was dismissed without meeting the requisite minimum employment period. The dispute came before the Fair Work Commission, which was tasked with determining the legitimacy of the dismissal under section 587 of the Fair Work Act 2009. The central issue before the Commission was whether Morgan had been employed for the minimum period of six months before his dismissal, as this threshold is a prerequisite for eligibility to lodge an unfair dismissal claim. Additionally, the Commission needed to ascertain whether the dismissal was initiated at the Commission's own motion, as this would affect the procedural aspects of the case.

The Commission meticulously examined the evidence presented by both parties, focusing on the employment records and the specific terms of Morgan's contract. It considered whether the dismissal process complied with the statutory requirements and whether any procedural errors occurred. The Commission ultimately concluded that Morgan had indeed been employed for the minimum six-month period required to make an unfair dismissal claim. It found that the dismissal was validly executed, and there were no procedural missteps warranting intervention. Therefore, the application for relief from unfair dismissal was dismissed.

Given these findings, the Commission ruled that the dismissal was fair and lawful. The evidence demonstrated that Morgan had met the employment period criterion, and the dismissal was processed in accordance with the law. Consequently, the application was dismissed, and Morgan's claim for unfair dismissal relief was not upheld.

Raymond Morgan v NRW Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established