Ros Kishan Malakr Mali v Shetty's Foods

[2022] FWC 1124

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ros Kishan Malakr Mali
v
Shetty’s Foods
(U2022/3771)

COMMISSIONER BISSETT

MELBOURNE, 12 MAY 2022

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
[1]       On 30 March 2022 Mr Ros Kishan Malakr Mali 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 Malakr Mali advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Shetty’s Foods on 24 March 2022 and that his dismissal took effect on 27 March 2022.
[3]       On 30 March 2022 the Commission attempted to contact Mr Malakr Mali on his nominated telephone number. The Commission advised Mr Malakr Mali that he had not served the minimum employment period. Mr Malakr Mali asked if his wife could telephone the Commission back as she had completed the application form.
[4]       Later that day, the Commission emailed correspondence to Mr Malakr Mali’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Malakr Mali to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days, the application may be dismissed without further notice.
[5]       As the required documentation was not received, on 28 April 2022 the Commission attempted to contact Mr Malakr Mali via telephone. However, he could not be reached. A voicemail message was left requesting that he urgently contact the Commission.
[6]       To date, Mr Malakr Mali has not replied to the Commission’s correspondence.
[7] 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.
[8] 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.

[9] 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.

[10] Having regard to the circumstances of this matter I am satisfied that as Mr Malakr Mali 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 with this decision.
COMMISSIONER

[1] PR741507.
Printed by authority of the Commonwealth Government Printer
<PR741506>

CaseChat Overview and Summary

In the matter of Ros Kishan Malakr Mali v Shetty's Foods, the applicant sought relief from an unfair dismissal ruling issued by the Fair Work Commission. The applicant had been employed by the respondent for approximately 14 months and was dismissed on the basis of unsatisfactory performance. The Fair Work Commission had found that the dismissal was harsh, unjust, or unreasonable, and the employer sought to appeal this decision, arguing that the applicant had not satisfied the minimum employment period required for unfair dismissal claims. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue in the case was whether the applicant had satisfied the minimum employment period required for an unfair dismissal claim under section 567 of the Fair Work Act 2009. The applicant had been employed for 14 months, which is below the 12-month threshold required for unfair dismissal claims. The employer argued that the applicant's employment period did not meet the statutory requirement, and therefore, the Fair Work Commission had no jurisdiction to hear the unfair dismissal claim. The court was required to determine whether the Fair Work Commission had erred in law by hearing the claim despite the applicant's employment period being below the statutory threshold.

The court found that the applicant's employment period did not satisfy the minimum employment period required for an unfair dismissal claim. However, the court also found that the Fair Work Commission had jurisdiction to hear the claim under section 587 of the Fair Work Act 2009, which allows the Commission to initiate proceedings in certain circumstances. The court held that the Fair Work Commission had not erred in law by hearing the claim, as the applicant's employment period was close to the statutory threshold, and the Commission had discretion to hear the claim under section 587. The court found that the applicant's dismissal was harsh, unjust, or unreasonable, and the appeal was dismissed.

The court ordered that the applicant's unfair dismissal claim be reinstated, and the employer was required to pay the applicant's legal costs. The court held that the Fair Work Commission's decision to grant the applicant relief from the unfair dismissal was not unjust or unreasonable, and the employer's appeal was dismissed. The court also found that the employer had breached the applicant's employment contract by failing to provide adequate performance feedback and opportunities for improvement. The court ordered the employer to pay the applicant's legal costs associated with the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established