Stephen Mcdonald Tracey v Matt

[2023] FWC 1752

[2023] FWC 1752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen Mcdonald Tracey
v

Matt

(U2023/5765)

COMMISSIONER BISSETT MELBOURNE, 19 JULY 2023

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

1. On 27 June 2023 Mr Stephen McDonald Tracey 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 Tracey advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Matt on 3 June 2023 and that his dismissal took effect on 22 June 2023.

1. On 30 June 2023, the Commission attempted to contact Mr Tracey on his nominated telephone number. A voicemail message was left requesting that Mr Tracey contact the Commission to discuss the minimum employment period. In this voicemail message, Mr Tracey was also notified that an email regarding the minimum employment period will be sent to him.

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

1. As the required documentation was not received, on 17 July 2023 the Commission attempted to contact Mr Tracey on his nominated telephone number. However, Mr Tracey could not be reached and no facility to leave a voicemail was available.

1. To date Mr Tracey 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 Tracey 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 Tracey 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.

COMMISSIONER
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