Ros Kishan Malakr Mali v Shetty's Foods

[2022] FWC 1124

[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.

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