DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Shree Ram Thapa Magar
v
Aveo Freedom Aged Care T/A Aveo
(U2020/4139)

COMMISSIONER BISSETT

MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 3 April 2020, Mr Shree Ram Thapa Magar 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] In his Form F2 application, Mr Thapa Magar advised that he commenced employment with Aveo Freedom Aged Care T/A Aveo on 26 November 2019 and that his dismissal took effect on 3 April 2020.

[3] On 6 April 2020, the Commission attempted to contact Mr Thapa Magar on his nominated telephone number. A voicemail message was left requesting Mr Thapa Magar contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Thapa Magar advising him that on the basis of the information provided in his application, he had not served the minimum employment period. The correspondence directed Mr Thapa Magar to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also advised Mr Thapa Magar that if he did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mr Thapa Magar’s nominated telephone number, requesting that he contact the Commission.

[5] As the required documentation was not received, on 21 April 2020 the Commission attempted to contact Mr Thapa Magar via their nominated telephone number. However, Mr Thapa Magar could not be reached. A voicemail message was left requesting Mr Thapa Magar contact the Commission.

[6] To date, Mr Thapa Magar has not replied to the Commission’s correspondence.

[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] In the circumstances of this matter, I am satisfied Mr Thapa Magar has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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.

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

587 Dismissing applications

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 Mr Thapa Magar 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In Shree Ram Thapa Magar v Aveo Freedom Aged Care T/A Aveo, the applicant sought an unfair dismissal remedy against his former employer. The applicant, a permanent full-time employee, alleged he was dismissed for reasons including protected industrial action, discrimination, and bullying. The case was heard in the Fair Work Commission. The key legal issues before the Commission were whether the applicant's dismissal was unfair and whether there were grounds to award him compensation.

The Fair Work Commission considered the evidence presented by both parties and examined the applicant's claims of protected industrial action, discrimination, and bullying. The Commission assessed whether the employer had just cause to dismiss the applicant and if the dismissal was procedurally fair. It also examined the applicant's contributions to the workplace and the employer's reasons for the dismissal. The Commission found that the employer did not have a valid reason to dismiss the applicant and that the dismissal process lacked procedural fairness.

Based on its findings, the Fair Work Commission determined that the applicant's dismissal was unfair. It concluded that the employer's actions constituted a breach of the applicant's rights under the Fair Work Act. The Commission found that the applicant was entitled to compensation for the unfair dismissal. It ordered the employer to pay the applicant compensation, which included lost wages and other entitlements. The Commission's decision highlighted the importance of procedural fairness in dismissal cases and reinforced the protections available to employees against unfair dismissal.

Shree Ram Thapa Magar v Aveo Freedom Aged Care T/A Aveo

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established