Ryan Sevilla v Best Track Pty Ltd

[2022] FWC 3384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ryan Sevilla
v

Best Track Pty Ltd

(U2022/10915)

COMMISSIONER BISSETT

MELBOURNE, 29 DECEMBER 2022

Application for an unfair dismissal remedy

On 14 November 2022 Mr Ryan Sevilla 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).

Mr Sevilla advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Best Track Pty Ltd on 5 September 2022 and he was notified of his dismissal on 17 October 2022.

The Commission sent correspondence to Mr Sevilla’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 Sevilla to file any documents or other 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 to him.

As the required documentation was not received, on 7 December 2022 the Commission attempted to contact Mr Sevilla on his nominated telephone number. However, Mr Sevilla could not be reached. A voicemail message was left requesting a call back to the Commission.

To date Mr Sevilla has not replied to the Commission’s correspondence.

Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Sevilla has not completed the required minimum employment period.

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.

Section 587(1) of the FW 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 prospect of success.

As Mr Sevilla has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success.

As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Ryan Sevilla v Best Track Pty Ltd, the applicant, Mr Ryan Sevilla, sought a remedy for unfair dismissal against his employer, Best Track Pty Ltd. Mr Sevilla commenced employment with the company on 5 September 2022 and was dismissed on 17 October 2022. He subsequently lodged an application for an unfair dismissal remedy with the Fair Work Commission. The Commission, however, found that Mr Sevilla did not satisfy the minimum employment period as required by the Fair Work Act 2009, and therefore had no reasonable prospect of success. Consequently, the Commission dismissed the application.

The primary legal issue in this case was whether Mr Sevilla had completed the minimum employment period as stipulated by the Fair Work Act. According to section 382 of the Act, an employee is protected from unfair dismissal if they have completed a specific period of employment. Section 383 further specifies that if the employer is not a small business employer, the minimum employment period is six months, whereas if the employer is a small business employer, the period is one year. The Commission found that Mr Sevilla did not meet the six-month threshold, as he had been employed for less than the requisite period.

The Commission's reasoning was based on the statutory requirement that an employee must have completed the minimum employment period to be protected from unfair dismissal. Given that Mr Sevilla had been employed for only a short duration, the Commission concluded that he did not satisfy this criterion. Additionally, Mr Sevilla failed to provide any evidence or documentation to support his claim that he had completed the required period. Furthermore, despite attempts to contact him, Mr Sevilla did not respond to the Commission's correspondence, which further undermined his claim.

The final order of the Commission was to dismiss the application for unfair dismissal remedy under section 587(1)(c) of the Fair Work Act, as the application had no reasonable prospect of success due to Mr Sevilla not completing the required minimum employment period. The Commission's decision highlights the importance of fulfilling the statutory requirements for protection against unfair dismissal and the necessity of substantiating claims with appropriate evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established