Samuel Hale v Rixel Pty Ltd

[2023] FWC 1340

[2023] FWC 1340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samuel Hale
v

Rixel Pty Ltd

(U2023/4127)

COMMISSIONER BISSETT MELBOURNE, 6 JUNE 2023

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 12 May 2023 Mr Samuel Hale 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).

1. Mr Hale advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Rixel Pty Ltd on 8 March 2023 and that his dismissal took effect on 8 May 2023.

1. On 16 May 2023 the Commission attempted to contact Mr Hale on his nominated telephone number. A voicemail message was left advising Mr Hale that he had not served the minimum employment period.

1. On 16 May 2023 Commission emailed correspondence to Mr Hale’s nominated email address advising Mr Hale that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Hale 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. An SMS notification was also sent to Mr Hale’s nominated telephone number requesting that he contact the Commission.

1. On 17 May 2023 the Commission attempted to contact Mr Hale on his nominated telephone number. A voicemail message was left advising Mr Hale that he had not served the minimum employment period and to contact the Commission.

1. On 1 June 2023 the Commission made a final attempt to contact Mr Hale on his nominated telephone number. A voicemail message was left advising Mr Hale that he had not served the minimum employment period and to contact the Commission.

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

1. 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 Hale has not completed the required minimum employment period.

1. 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.

1. 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.

1. As Mr Hale has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR762861>