Tyson Daniel O'Connor v Toyota Mornington

[2022] FWC 2073

[2022] FWC 2073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tyson Daniel O’Connor
v

Toyota Mornington

(U2022/7655)

COMMISSIONER BISSETT MELBOURNE, 5 AUGUST 2022

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

1. On 20 July 2022, Mr Tyson Daniel O’Connor 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 O’Connor advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Toyota Mornington on 19 April 2022 and that his dismissal took effect on 20 July 2022.

1. On 21 July 2022, the Commission attempted to contact Mr O’Connor on his nominated telephone number. A voicemail message was left requesting he return the Commission’s call to discuss his application as it appeared he had not served the minimum employment period.

1. On 22 July 2022, the Commission emailed correspondence to Mr O’Connor’s nominated email address advising him that on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr O’Connor to file any documents/evidence to support his claim that they had served the required minimum employment period. That correspondence also warned that if he 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 3 August 2022 the Commission attempted to contact Mr O’Connor via his nominated telephone number however he could not be reached. A voicemail message was left requesting he contact the Commission urgently as his application was at risk of dismissal.

1. To date, Mr O’Connor 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. In the circumstances of this matter, I am satisfied Mr O’Connor has not completed the required minimum employment period and his/her application has no reasonable prospects of success.

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 O’Connor has not completed the required minimum employment period under the FW Act, his/her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

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