Sebastian Roy Alker v Suncoast Water Gardens Pty Ltd

[2022] FWC 2370

[2022] FWC 2370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sebastian Roy Alker

v

Suncoast Water Gardens Pty Ltd

(U2022/8394)

cOMMISSIONER bISSETT MELBOURNE, 6 SEPTEMBER 2022

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

1. On 16 August 2022 Mr Sebastian Roy Alker (the 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).

1. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Suncoast Water Gardens Pty Ltd on 18 July 2022 and that his dismissal took effect on 16 August 2022.

1. On 17 August 2022 the Commission attempted to contact the Applicant on his nominated telephone number. However, the call was unanswered. A detailed voicemail message was left requesting the Applicant contact the Commission to confirm his dates of employment. The voicemail explained that, based on the dates supplied on the Form F2, the Applicant had not served the minimum employment period. The Applicant may therefore be ineligible to proceed with an application for unfair dismissal remedy as he had not completed the minimum employment period.

1. Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, based on the information provided in the Form F2, he 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.

1. As the required documentation was not received, on 30 August 2022 the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant could not be reached. A voicemail message was left requesting the Applicant contact the Commission to confirm his dates of employment. The Applicant was advised that if he did not contact the Commission his matter may be dismissed

1. To date, the Applicant has not responded to the Commission.

1. 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.

1. In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his application has no reasonable prospects of success.

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 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

(c)       the application has no reasonable prospects of success.

1. Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

[1] PR745548

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