Rohan Kells v Central Connect Pty Ltd

[2021] FWC 771

[2021] FWC 771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rohan Kells
v
Central Connect Pty Ltd
(U2021/401)

COMMISSIONER BISSETT MELBOURNE, 15 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 14 January 2021, Mr Rohan Kells 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] Mr Kells omitted in the Form F2 Unfair Dismissal Application (Form F2) the date he commenced employment with Central Connect Pty Ltd and advised that his dismissal took effect on 5 January 2021 and that he was notified of his dismissal on 4 January 2021.

[3] On 15 January 2021, the Commission contacted Mr Kells on his nominated telephone number to request the missing details. Mr Kells advised he would look into it and terminated the call.

[4] Later that day, the Commission emailed correspondence to Mr Kells’s nominated email address requesting that he provide further details as the application was incomplete, that Question 1.1 on the Form F2 needed to be completed and the completed information returned to the Commission.

[5] On 28 January 2021, the Commission contacted Mr Kells on his nominated telephone number. Mr Kells advised he commenced employment with Central Connect Pty Ltd on 28 November 2020. The Commission advised that he had not served the minimum employment period. Mr Kells advised he had worked for the Respondent in the past and that there had been a gap of one year between employment. The Commission reiterated what was previously said about the minimum employment period and guided him to the Commission’s website. Mr Kells requested time to seek legal guidance.

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

[7] An SMS notification was also sent to Mr Kells’s nominated telephone number on the same day, requesting that he contact the Commission.

[8] As the required documentation was not received, on 9 February 2021, the Commission attempted to contact Mr Kells via his nominated telephone number. Mr Kells could not be reached. A voicemail message was left advising that his application was at risk of being dismissed by a member if he does not discontinue the matter or provide information that indicates he meets the minimum employment period.

[9] To date, no response or correspondence has been received from Mr Kells.

[10] 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.

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

[12] 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.

[13] 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 prospect of success.

[14] Having regard to the circumstances of this matter I am satisfied that, as Mr Kells 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

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