Rony Joel Barreto da Costa v Subsea 7 Australia Contracting Pty Ltd T/A Subsea Engineering Installation Contractor Oil & Gas Subsea 7 House

[2018] FWC 1775

[2018] FWC 1775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rony Joel Barreto da Costa
v
Subsea 7 Australia Contracting Pty Ltd T/A Subsea Engineering Installation Contractor Oil & Gas Subsea 7 House
(U2018/1862)

DEPUTY PRESIDENT BULL PERTH, 11 APRIL 2018

Application for an unfair dismissal remedy - minimum employment period – no reasonable prospects of success – application dismissed.

[1] On 23 February 2018 Mr Rony Joel Barreto da Costa (the applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment by Subsea 7 Australia Contracting Pty Ltd T/A Subsea Engineering Installation Contractor Oil & Gas Subsea 7 House (the respondent)

[2] In the Form F2 Unfair Dismissal Application the applicant stated that he commenced employment with the Respondent on 20 November 2017. He says that he was notified of his dismissal on 22 February 2018, the same day it took effect.

[3] The application was accompanied by a letter from the respondent to the applicant dated 22 February 2018 indicating that the applicant was employed pursuant to a fixed term contract that was contingent on a further working visa being obtained for him. The correspondence indicated the respondent had chosen not to exercise the extension of the applicant’s contract and his employment was therefore terminated with immediate effect.

[4] On the same day the applicant lodged his application, the Commission sent him correspondence alerting him to the fact that on the basis of the information contained in the Form F2, he had not served the minimum employment period of six months to be protected from unfair dismissal under the Act. 1 The correspondence required the applicant to provide evidence to support his claim that he had served the minimum employment period within 14 days.

[5] On 24 February 2018 the applicant sent an email to the Commission requesting advice on what steps he could take, noting he felt his employment had been terminated by the respondent ‘for no reason’.

[6] After attempting unsuccessfully to contact the applicant by telephone, the Commission replied to the applicant by email on 26 February 2018. This further correspondence reiterated that unless the applicant could demonstrate his employment satisfied the minimum employment period the Commission did not have jurisdiction to deal with his application. It advised the applicant that unless he confirmed whether he wished to pursue his application by 9 March 2018 it may be dismissed.

[7] On the same day the applicant replied to confirm that he wished to continue with his application. He did not however provide any material indicating that his employment satisfied the minimum employment period.

[8] The matter was subsequently allocated to my chambers. On 6 March 2018, in light of the applicant’s stated intention to pursue his application, I instructed my chambers to write to him advising that, on the material available, I did not consider the Commission had jurisdiction to deal with his application and I intended to dismiss it. The applicant was advised however that if he wished to provide any further material for the Commission’s consideration, this should be received by 20 March 2018.

[9] No further correspondence has been received from the applicant to date.

[10] No response to the application has been filed by the respondent.

[11] 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.

[12] 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.

[13] Section 587 of the 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 prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[14] On the information provided by the applicant, he was employed by the respondent for approximately 3 months. Accordingly, I am satisfied the applicant has not completed the required minimum employment period set out in s. 383 of the Act, regardless of whether the respondent is a small business employer or not. The application therefore has no reasonable prospects of success as the applicant is not a person protected from unfair dismissal pursuant to s.382 of the Act.

[15] Whilst it also appears that the applicant may have been employed under a contract for a specified period of time and therefore not dismissed within the meaning of s. 386(2)(a) of the Act this is not a matter considered in this decision.

[16] Pursuant to s. 587(1)(c) of the Act, the application is dismissed.

DEPUTY PRESIDENT

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 1   Ss.382 and 383