Terence Thommeny v Amazing Grace

[2022] FWC 1514

[2022] FWC 1514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Terence Thommeny

v

Amazing Grace

(U2022/5530)

cOMMISSIONER O’NEILL melbourne, 5 july 2022

Application for relief from unfair dismissal – failure to pay filing fee – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

1. On 19 May 2022, Mr Terence Thommeny (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).

1. There were multiple issues with the Form F2 – Unfair Dismissal Application (Form F2) filed by the Applicant in that the application did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act and the Applicant had not served the minimum employment period. The Applicant advised that he commenced employment with Amazing Grace on 21 June 2022 and that he was notified of his dismissal on 17 May 2022.

1. On 20 May 2022, 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 to discuss his application.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. The correspondence also advised that on the basis of the information contained 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 that he had 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.

1. As the required documentation was not received, on 1 June 2022 the Commission again attempted to contact the Applicant on his nominated telephone number to discuss the application. The Applicant failed to answer the call. A voicemail message was left requesting that he urgently contact the Commission to discuss his application and to make payment otherwise his application may be dismissed without further notice.

1. On 2 June 2022 the Applicant wrote to the Commission advising that he has been “in a remote location in Queensland & wish to inquire where my application for my Unfair dismissal is at this point in time. Please advise if you require further information.” The Commission sent email correspondence to the Applicant later that day explaining that the Applicant did not meet the minimum employment period and advised that if he does not provide the requested information by close of business on Friday, 3 June 2022 his application may be at risk of being dismissed. The Applicant failed to respond.

1. To date, the Applicant has not provided the requested information and has not paid the filing fee.

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 the Applicant has not completed the required minimum employment period, his application has no reasonable prospects of success.

1. Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed under ss.587(1)(a) and (c) of the FW Act. An order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR742680

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<PR742679>