Tarquin Adams v NAK Total Sealing Solutions Ausr

[2021] FWC 4956

[2021] FWC 4956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tarquin Adams
v
NAK Total Sealing Solutions Ausr
(U2021/6376)

COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 19 July 2021 Mr Tarquin Adams 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). Mr Adams alleged he was unfairly dismissed by NAK Total Sealing Solutions Ausr (the Respondent) on 22 June 2021

[2] The application was received by the Fair Work Commission’s Brisbane Registry from the Fair Work Ombudsman who received it from the Office of Fair Trading.

[3] Mr Adams advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with NAK Total Sealing Solutions Ausr on 12 January 2021 and that his dismissal took effect on 22 June 2021.

[4] On 21 July 2021 the Commission attempted to contact Mr Adams on his nominated telephone number. A voicemail message was left requesting Mr Adams contact the Commission to discuss his application.

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

[6] As the required documentation was not received, on 3 August 2021 the Commission attempted to contact Mr Adams via both of his nominated telephone numbers. However, Mr Adams could not be reached. A voicemail message was left advising that his matter was now at risk of being dismissed and a decision to be published on the Commission’s public website.

[7] To date, Mr Adams has not replied to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr Adams 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

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