Samuel-Kristen Van Der Merwe v Abilitiesnq Pty Ltd Summary

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Samuel-Kristen Van Der Merwe lodged an application with the Fair Work Commission against Abilitiesnq Pty Ltd for unfair dismissal under section 394 of the Fair Work Act 2009. Mr Van Der Merwe claimed to have been dismissed by Abilitiesnq Pty Ltd on 14 February 2024 but was unable to provide the exact date of his commencement of employment, although he indicated that his first payslip was for the period of 28 August 2023 to 3 September 2023. The Commission attempted to contact Mr Van Der Merwe to request further information and warned him that his application may be dismissed if he failed to respond within 14 days. The Commission did not receive any response or documentation from Mr Van Der Merwe and subsequently dismissed his application under section 587(1)(c) of the Fair Work Act 2009 as it had no reasonable prospects of success.

The central legal issue in this case was whether Mr Van Der Merwe had completed the minimum employment period required to be protected from unfair dismissal under the Fair Work Act 2009. Section 382 of the Fair Work Act 2009 provides protection from unfair dismissal to employees who have completed a certain period of employment. Section 383 of the Fair Work Act 2009 specifies the minimum employment period for a small business employer as one year, or six months for employers who are not small business employers. Section 587(1)(c) of the Fair Work Act 2009 allows the Fair Work Commission to dismiss an application if it has no reasonable prospects of success. The Commission had to determine if Mr Van Der Merwe's application met the criteria for dismissal under section 587(1)(c) of the Fair Work Act 2009.

The Fair Work Commission, in considering Mr Van Der Merwe's application, determined that he had not completed the required minimum employment period under the Fair Work Act 2009. Mr Van Der Merwe was unable to provide sufficient information to establish his exact date of employment, and the Commission had not received any further documentation to support his claim. The Commission had contacted Mr Van Der Merwe on multiple occasions, both by telephone and email, requesting additional information but had not received a response. Given the lack of evidence to substantiate Mr Van Der Merwe's claim, the Commission concluded that his application had no reasonable prospects of success. Consequently, the application was dismissed under section 587(1)(c) of the Fair Work Act 2009. An Order will be issued in accordance with this decision.

The Fair Work Commission dismissed Samuel-Kristen Van Der Merwe's application for unfair dismissal against Abilitiesnq Pty Ltd. The Commission found that Mr Van Der Merwe had not provided sufficient evidence to demonstrate that he had completed the required minimum employment period under the Fair Work Act 2009. Despite multiple attempts to contact Mr Van Der Merwe for further information, the Commission did not receive a response, leading to the conclusion that his application had no reasonable prospects of success. As such, the application was dismissed under section 587(1)(c) of the Fair Work Act 2009. An Order to this effect will be issued with this decision.

Samuel-Kristen Van Der Merwe v Abilitiesnq Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established