Travis Kelly v Isologics Pty Ltd

[2024] FWC 986

[2024] FWC 986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Travis Kelly

v

Isologics Pty Ltd

(U2024/2470)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

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

1. On 4 March 2024, Mr Travis Kelly 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 Kelly advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Isologics Pty Ltd (the Respondent) on 18 October 2023 and that his dismissal took effect on 15 February 2024.

1. On 15 March 2024, the Commission attempted to contact Mr Kelly on his nominated telephone number. The call was not answered and there was no option to leave a voicemail message. Mr Kelly returned the call, and the Commission explained that the attempted call was in relation to him having not served the minimum employment period. Mr Kelly was advised to contact the Commission by 29 March 2024, with his instructions regarding his matter.  Later that day, the Commission emailed correspondence to Mr Kelly’s nominated email address advising that, on the basis of the information provided in his Form F2, he may not have served the minimum employment period. The correspondence directed Mr Kelly to file any documents or other evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days his application may be dismissed without further notice. An SMS notification was also sent to Mr Kelly’s nominated telephone number requesting that he contact the Commission.

1. As the required documentation was not received, on 2 April 2024 the Commission attempted to contact Mr Kelly on his nominated telephone number. However, Mr Kelly could not be reached. A voicemail message was left requesting that Mr Kelly urgently contact the Commission as the dates in his Form F2 application indicated that he had not served the minimum employment period and that his application was at risk of being dismissed if no contact was received. To date Mr Kelly has not made further contact with the Commission.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. 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 as follows:

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. As the material before the Commission does not indicate that Mr Kelly has completed the required minimum employment period under the FW Act, I am satisfied the 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.

DEPUTY PRESIDENT

<PR773536>

[1] PR773537.

Printed by authority of the Commonwealth Government Printer