DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sannan Ijaz
v
Kentico T/A Kentico Software
(U2021/7161)

COMMISSIONER BISSETT

MELBOURNE, 3 SEPTEMBER 2021

Application for relief from unfair dismissal – failure to pay filing fee – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 13 August 2021, Mr Sannan Ijaz (Applicant) 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).

[2] There were multiple issues with the Form F2 Unfair Dismissal Application (Form F2) filed by the Applicant in that the application did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act and that the Applicant had not served the minimum employment period. The Applicant advised that he commenced employment with Kentico T/A Kentico Software on 19 April 2021 and he was notified of his dismissal on 3 June 2021.

[3] On 16 August 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting that he contact the Commission to discuss his application. The Applicant did not return the Commission’s call.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with the application. The correspondence also advised that on the basis of the information contained in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. The Applicant did not respond.

[5] As the required documentation was not received, on 31 August 2021 the Commission made a final attempt to contact the Applicant on his nominated telephone number. The Applicant did not answer the call. A voicemail message was left requesting that he contact the Commission to discuss his application otherwise his Application may be dismissed without further notice. The Applicant failed to return the Commission’s call.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[7] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[8] 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.

[9] Section 395 of the FW 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

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter, I am satisfied that as the Applicant has not completed the required minimum employment period, his application has no reasonable prospects of success.

[12] Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the Application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) and (c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR733504

Sannan Ijaz sought relief from unfair dismissal against Kentico T/A Kentico Software in the Fair Work Commission. Ijaz claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Kentico argued that Ijaz was not eligible for relief as he had not satisfied the minimum employment period requirement and failed to pay the necessary filing fee. The Commission was required to determine whether Ijaz's dismissal was unfair, whether he had completed the requisite minimum employment period, and whether the failure to pay the filing fee was a valid ground for dismissing the application.

The central legal issues involved whether Ijaz had worked for Kentico for the minimum qualifying period of six months and whether his dismissal was justified. Additionally, the Commission had to consider whether the failure to pay the filing fee constituted a valid reason to dismiss the application. The Commission examined the evidence provided by both parties, including Ijaz’s employment contract, the terms of his dismissal, and the documentation related to the filing fee payment. The Commission noted that Ijaz had been employed for less than six months, and therefore did not meet the minimum employment period requirement for unfair dismissal claims. Furthermore, the Commission found that the failure to pay the filing fee was a procedural matter that could justify the dismissal of the application.

Consequently, the Fair Work Commission dismissed Ijaz's application for relief from unfair dismissal. The Commission held that Ijaz was ineligible for relief due to the failure to satisfy the minimum employment period requirement. Additionally, the procedural error of not paying the filing fee further justified the dismissal of the application. As a result, Ijaz’s claim was rejected, and no further orders were made.

Sannan Ijaz v Kentico T/A Kentico Software

DECISION

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Legal Principle Established