Sergio Capozzi v Lsyn Pty Ltd

[2023] FWC 18

[2023] FWC 18

FAIR WORK COMMISSION

DIRECTIONS

Fair Work Act 2009

s.394—Unfair dismissal

Sergio Capozzi
v

Lsyn Pty Ltd

(U2022/11656)

COMMISSIONER BISSETT MELBOURNE, 4 JANUARY 2023

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

1. On 8 December 2022 Mr Sergio Capozzi 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. Mr Capozzi advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Lsyn Pty Ltd on 30 May 2022 and he was notified of his dismissal on 28 November 2022.

1. On 9 December 2022 the Commission attempted to contact Mr Capozzi on his nominated telephone number. A voicemail message was left requesting that Mr Capozzi contact the Commission to confirm his dates if employment.

1. Later that day the Commission emailed correspondence to Mr Capozzi’s nominated email address advising Mr Capozzi that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Capozzi to file any documents/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 the application may be dismissed without further notice.

1. As the required documentation was not received, on 22 December 2022 the Commission attempted to contact Mr Capozzi on his nominated telephone number. However, Mr Capozzi could not be reached. A voicemail message was left requesting that he contact the Commission urgently to confirm his dates of employment.

1. To date Mr Capozzi has not replied to the Commission’s correspondence.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Capozzi has not completed the required minimum employment period.

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 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 prospect of success.

1. As Mr Capozzi has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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