Singh v Teldraw Pty Ltd

[2016] FWC 2944

[2016] FWC 2944

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Kamal Singh
v
Teldraw Pty Ltd T/A Global Skills
(U2016/821)
COMMISSIONER WILSON	MELBOURNE, 13 MAY 2016
Application for relief from unfair dismissal.

[1]        On 26 February 2016, Mr Kamal Singh made an application for a remedy for unfair

dismissal under section 394 of the Fair Work Act 2009.

[2]        Mr Singh advised that he commenced employment with Global Skills on 27 July 2015

and that he was notified of his dismissal on 21 January 2016. On his application form, Mr

Singh indicated that the dismissal took effect on 4 February 2016.

[3]        Mr Singh filed his application outside of the statutory timeframe. On 11 April 2016,

Senior Deputy President Drake granted Mr Singh an extension of time in filing his

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application.

[4]        On 15 April 2016, Global Skills contacted the Commission and requested that its

jurisdictional objection, namely that Mr Singh did not meet the minimum employment period,

be determined prior to the hearing of the substantive matter. Global Skills says that Mr Singh

was notified of the termination of his employment on 21 January 2016 and as such, he is not

entitled to make an application for unfair dismissal.

[5]        On 20 April 2016, correspondence was sent to Mr Singh pointing out that on the basis

of the information contained in the application, he had not served the minimum employment

period. The correspondence required Mr Singh to advise the Commission within 14 days

whether he wished to proceed with his application.

[6]        Mr Singh did not reply to that correspondence. The Commission contacted Mr Singh

on 10 May 2016 by telephone. During the conversation he indicated that he wished to pursue

his application. Mr Singh said that despite receiving the notice on 21 January 2016, six days

shy of six months employment – he worked through his notice period - a further two weeks.

This further period equated to him working the minimum period of employment of six

months.
[2016] FWC 2944

[7]        Section 382 of the 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]        Section 383 of the Act sets out the minimum employment period:

“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.”

(my emphasis).

[9]        I have had regard to Mr Singh’s views as outlined above at [6], however on plain

reading of the Act, I am satisfied Mr Singh has not completed the required minimum

employment period and his application has no reasonable prospects of success.

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

“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.”

[11]      Consequently, the application is dismissed under section 587(1)(c) of the Act. An

Order to this effect will be issued shortly.

COMMISSIONER

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