Sheng-Kai Tsai v The Trustee for the Lt Corporate Management Unit Trust

[2024] FWC 1187

[2024] FWC 1187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sheng-Kai Tsai
v

The Trustee For The Lt Corporate Management Unit Trust

(U2024/2328)

COMMISSIONER JOHNS MELBOURNE, 8 MAY 2024

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

1. On 1 March 2024, Sheng-Kai Tsai (Applicant) made an application to the Fair Work Commission (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 they commenced employment with The Trustee For The Lt Corporate Management Unit Trust on Monday 21 August 2023 and that their dismissal took effect on Sunday 11 February 2024.

1. On 12 March 2024, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents/evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. On 12 March 2024, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting the Applicant to contact the Commission to discuss the minimum employment period in relation to their application.

1. An SMS notification was also sent on 12 March 2024 to the Applicant’s nominated telephone number. The SMS advised the Applicant to take action in compliance with the email from the Commission regarding the incomplete matter.

1. On 26 March 2024, an email was received by the Commission from the Applicant about their dismissal. This email did not discuss the dates of employment or the minimum employment period.

1. On 27 March 2024, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left explaining the minimum employment period is a requirement to be eligible for this application type. The voicemail also requested that the Applicant contact the Commission to discuss the matter.

1. On 9 April 2024, the Commission attempted to contact the Applicant on their nominated telephone number. The Applicant was advised of the minimum employment period requirement and advised that unless documents were provided showing this requirement had been met the matter may be dismissed. The Applicant understood this and accepted that the application may be dismissed.

1. On 9 April 2024, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left requesting the Applicant to contact the Commission to confirm if they would like to discontinue the matter.

1. To date the Applicant 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.

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. In light of the Applicant’s concession, I am satisfied that the Applicant has not completed the required minimum employment period.

1. As the Applicant has not completed the required minimum employment period under the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act and I do so order [PR774605].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR774604>