Shubham Kashyap v Apex Lifestyle Pty Ltd

[2024] FWC 739

[2024] FWC 739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shubham Kashyap
v

Apex Lifestyle Pty Ltd

(U2024/810)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MARCH 2024

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

1. On 24 January 2024, Mr Shubham Kashyap 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 Kashyap advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Apex Lifestyle Pty Ltd (the Respondent) on 30 October 2023 and that his dismissal took effect on 19 January 2024.

1. On 25 January 2024 the Commission emailed correspondence to Mr Kashyap’s nominated email address advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Kashyap to file any documents or other 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 his application may be dismissed without further notice.

1. On 14 February 2024 the Commission attempted to contact Mr Kashyap on his nominated telephone number. Mr Kashyap could not be reached, and a voicemail message was left requesting he call the Commission and that on the basis of the dates provided in his Form F2 he may not meet the minimum employment period.

1. As the required documentation was not received, on 23 February 2024, the Commission again attempted to contact Mr Kashyap on his nominated telephone number. However, Mr Kashyap could not be reached and the call went unanswered. To date, Mr Kashyap has not replied to the Commission’s attempts to contact him.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 prospects of success.

1. As the material before the Commission indicates Mr Kashyap has not completed the required minimum employment period under the FW Act, I am persuaded the 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 with this decision.

DEPUTY PRESIDENT

[1] PR772611.

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<PR772610>