Steven Parima v ABC Photosigns

[2021] FWC 5506

[2021] FWC 5506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Parima
v
ABC Photosigns
(U2021/7330)

COMMISSIONER BISSETT MELBOURNE, 3 SEPTEMBER 2021

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

[1] On 17 August 2021, Mr Steven Parima (Applicant) 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] The Form F2 – Unfair Dismissal Application (Form F2) filed by the Applicant was incomplete in that he did not provide the commencement date of employment with ABC Photosigns (Respondent). However, the Employment Contract attached to the Form F2 stated that the Applicant commenced employment with the Respondent on 29 March 2021. The Applicant advised in the Form F2 that his dismissal took effect on 30 July 2021.

[3] On 18 August 2021, the Commission attempted to telephone the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission. The Applicant did not return the Commission’s call.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that on the basis of the information provided in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim of having served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 2 September 2021 the Commission again attempted to telephone the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission otherwise his application may be dismissed. The Applicant failed to return the Commission’s call.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[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] 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.

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

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.

[10] Having regard to the circumstances of this matter I am satisfied that as the Applicant 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)(a) and (c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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