Roderick Santiago v Astreya T/A Astreya Pty Limited

[2016] FWC 1851

[2016] FWC 1851

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roderick Santiago
v
Astreya T/A Astreya Pty Limited
(U2015/17158)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 23 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Santiago lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 23 December 2015.

[2] In his application Mr Santiago stated his employment commenced on 29 June 2015 and ceasing by way of an immediately effective termination of employment 11 December 2015. If these dates are accurate Mr Santiago was employed for less than the minimum employment period required by the Act and his application cannot proceed for want of jurisdiction.

[3] On 5 January 2016 an employee of the Fair Work Commission spoke to Mr Santiago and advised him that the Act specified a period of six months as the minimum employment period before an employee was entitled to make an application for an unfair dismissal remedy. He was advised that this was an obligatory prerequisite. He advised that he would obtain further advice from his lawyer at a community legal centre.

[4] On 13 January 2016 an employee of the Fair Work Commission telephoned Mr Santiago who advised that he had been informed by his community legal centre lawyer to continue with this application, despite not having met the minimum employment period. He stated that he was advised that the Fair Work Commission could waive the minimum employment period. He therefore wished to continue with his application.

[5] I wrote to Mr San Diego on 22 January 2016. The substance of that correspondence is set out below:

“It is apparent from your application that you may not have met the minimum employment period requirements prescribed by the Fair Work Act 2009. An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.

Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.”

[6] No answer was received to this correspondence.

[7] I dismissed Mr Santiago’s application on 17 February 2016.

SENIOR DEPUTY PRESIDENT

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