Tang Binh Nguyen v St Vincent Hospital Sydney

[2022] FWC 2996

[2022] FWC 2996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tang Binh Nguyen
v

St Vincent Hospital Sydney

(U2022/10180)

COMMISSIONER BISSETT MELBOURNE, 11 NOVEMBER 2022

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

1. On 19 October 2022, Mr Tang Binh Nguyen 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 Nguyen advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with St Vincent Hospital Sydney on 11 April 2022 and that his dismissal took effect on 6 October 2022.

1. On 20 October 2022, the Commission contacted Mr Nguyen on his nominated telephone number. The Commission advised Mr Nguyen that he had not served the minimum employment period. Mr Nguyen advised he was meant to start a week earlier on 4 April 2022, and he may have met the minimum employment period. The Commission advised Mr Nguyen he should file any documents/evidence to support his claim that he had met the minimum employment period and to consider seeking legal advice.

1. Later that day, the Commission emailed correspondence to Mr Nguyen’s nominated email address advising Mr Nguyen that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Nguyen to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr Nguyen did not contact the Commission within 14 days, the application may be dismissed without further notice. That correspondence also provided information regarding the Commission’s Workplace Advice Service.

1. As the required documentation was not received, on 2 November 2022 the Commission attempted to contact Mr Nguyen via his nominated telephone number. However, Mr Nguyen could not be reached. A voicemail message was left requesting Mr Nguyen to contact the Commission.

1. To date, Mr Nguyen 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 of at least the 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 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.

1. Having regard to the circumstances of this matter I am satisfied that as Mr Nguyen 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)(c) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR747841

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