Samuel-Kristen Van Der Merwe v Abilitiesnq Pty Ltd
[2024] FWC 877
•10 MAY 2024
| [2024] FWC 877 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samuel-Kristen Van Der Merwe
v
Abilitiesnq Pty Ltd
(U2024/2095)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 10 MAY 2024 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 26 February 2024, Mr Samuel-Kristen Van Der Merwe 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 Van Der Merwe advised in his Form F2 – Unfair Dismissal Application (Form F2) that he did not know the exact date he commenced employment with Abilitiesnq Pty Ltd (the Respondent), but that his first payslip was for the period of 28 August 2023 to 3 September 2023, and that his dismissal took effect on 14 February 2024.
On 27 February 2024, the Commission attempted to contact Mr Van Der Merwe on his nominated telephone number. A voicemail message was left requesting that Mr Van Der Merwe call the Commission back to discuss his incomplete application. Later that day, the Commission emailed correspondence to Mr Van Der Merwe’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Van Der Merwe 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 his application may be dismissed without further notice.
As the required documentation was not received, on 11 March 2024 and 20 March 2024, the Commission attempted to contact Mr Van Der Merwe on his nominated telephone number. However, Mr Van Der Merwe could not be reached. A voicemail message was left on each occasion requesting to call back. To date Mr Van Der Merwe has not replied to the Commission’s correspondence or attempts to contact him.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 prospects of success.
As the material before the Commission indicates Mr Van Der Merwe has not completed the required minimum employment period under the FW Act, I am persuaded the 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.
DEPUTY PRESIDENT
[1] PR773205.
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