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

[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

Printed by authority of the Commonwealth Government Printer

1 PR733536

Steven Parima sought relief from his unfair dismissal from ABC Photosigns. The dispute centred on whether he had been unfairly dismissed and whether he was eligible for relief under the Fair Work Act 2009, given his employment period was less than the statutory minimum. The matter was heard at the Fair Work Commission.

The primary issue for the Commission was whether the application was properly made, and if Mr Parima was eligible for relief, considering the minimum period of employment required by section 569B of the Act. Another issue was whether the Commission could initiate the dismissal under section 587 due to the incomplete application.

The Commission held that the application was incomplete and did not meet the necessary requirements to be considered. It was noted that the application did not provide sufficient evidence to support a claim of unfair dismissal. Furthermore, Mr Parima had not met the minimum employment period stipulated in the Act, thus rendering him ineligible for relief. The Commission found that the application should be dismissed, and it exercised its discretion to do so under section 587.

The Commission dismissed the application and did not award any relief to Mr Parima.

Steven Parima v ABC Photosigns

DECISION

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