Sanjaya Marasinghelage v Cruisin Motorhomes Pty Ltd

[2024] FWC 3500

[2024] FWC 3500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sanjaya Marasinghelage
v

Cruisin Motorhomes Pty Ltd

(U2024/13236)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 DECEMBER 2024

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

1. Mr Sanjaya Marasinghelage applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 5 November 2024.

1. Mr Marasinghelage stated in his unfair dismissal application (Form F2) that his employment with Cruisin Motorhomes Pty Ltd (the Respondent) commenced on 27 May 2024 and that his dismissal took effect on 26 September 2024.

1. On 11 November 2024, the Commission emailed correspondence to Mr Marasinghelage’s nominated email address informing him that the information that he had provided in his Form F2 shows that he might not have worked for the minimum employment period. The correspondence directed Mr Marasinghelage to file any documentation to support any claim that he had served the applicable minimum employment period under the Act. Further, the correspondence informed Mr Marasinghelage that the Commission had not received payment of the required application fee or a copy of a completed Form F80 in relation to his unfair dismissal application. That correspondence also warned Mr Marasinghelage that if he did not contact the Commission within 14 days, his application might be dismissed without further notice.

1. Later that day, a SMS notification was sent to Mr Marasinghelage’s nominated mobile number requesting him to contact the Commission.

1. On 13 November 2024, the Commission attempted to contact Mr Marasinghelage on his nominated telephone number. A voicemail message was left requesting Mr Marasinghelage to contact the Commission. This was because it was unclear whether he had served the minimum employment period to be protected from unfair dismissal under the Act.

1. The Commission made a final attempt to contact Mr Marasinghelage on his nominated telephone number on 27 November 2024. The call was answered and Mr Marasinghelage indicated that he was unsure how to proceed. Mr Marasinghelage was provided information about the Workplace Advice Service via email. Mr Marasinghelage was also informed that he had until close of business on 28 November 2024 to contact the Commission in relation to his unfair dismissal application and that otherwise the matter would most likely be dismissed without further notice.

1. The Commission did not receive any documentation in support of Mr Marasinghelage’s Form F2 that could evidence that he had worked for the Respondent for the applicable minimum employment period.

1. Mr Marasinghelage has not responded to the Commission’s multiple attempts to contact him in relation to his Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 395 of the Act, which deals with application fees, provides as follows:

   “395  Application fees 

   (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations. 

   (2) The regulations may prescribe: 

   (a) a fee for making an application to the FWC under this Division; and 

   (b) a method for indexing the fee; and 

   (c) the circumstances in which all or part of the fee may be waived or refunded.” (bold text in the original) 

2. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

3. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The relevant Form F2 application has not been accompanied by the prescribed application fee or a completed Form F80 for the Commission’s consideration and, therefore, has not been made in accordance with the Act. More fundamentally in this case, however, Mr Marasinghelage needs to have completed a period of employment of at least 6 months with the Respondent to be protected from unfair dismissal. The material before the Commission indicates that Mr Marasinghelage has not satisfied this requirement and, therefore, I am persuaded that his application has no reasonable prospects of success. As such, Mr Marasinghelage’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR782486

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