Warwick Hircoe v Durocolour Australia Pty Ltd

[2024] FWC 973

[2024] FWC 973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Warwick Hircoe
v

Durocolour Australia Pty Ltd

(U2024/1453)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 APRIL 2024

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

1. On 12 February 2024, Mr Warwick Hircoe 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 Hircoe advised in his Form F2 – Unfair Dismissal Application (Form F2) that he commenced employment with Durocolour Australia Pty Ltd (the Respondent) on 28 August 2023 and that he was notified of his dismissal on 29 January 2024.

1. On 13 February 2024, the Commission attempted to contact Mr Hircoe’s nominate representative Mr Sven Raedel, on his nominated telephone number. A voicemail message was left requesting that the Commission be contacted regarding Mr Hircoe’s application. Later that day the Commission emailed correspondence to Mr Hircoe’s nominated email address advising him that, on the basis of the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Hircoe 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 Hircoe’s nominated telephone number requesting that he contact the Commission.

1. As the required documentation was not received, on 22 February 2024 the Commission contacted Mr Hircoe on his nominated telephone number. Mr Hircoe advised that he would like to proceed with his application, despite understanding that he did not meet the minimum employment period requirement. During this call Mr Hircoe became agitated and began using explicit language, he was informed that the call would need to be terminated and was provided with information about obtaining legal advice.

1. On 1 and 26 March 2024, the Commission made a further two telephone calls to Mr Hircoe’s nominated telephone number. The calls were not answered, and disconnected without the facility to leave voicemail messages, on both occasions. To date, Mr Hircoe 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 prospects of success.

1. As the material before the Commission does not indicate that Mr Hircoe 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

<PR773500>

[1] PR773501.

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