Werner Dittrich v Fulton Hogan Construction Pty Ltd

[2023] FWC 3334

[2023] FWC 3334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Werner Dittrich
v

Fulton Hogan Construction Pty Ltd

(U2023/10558)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 26 October 2023, Werner Dittrich (the 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 (the Act).

1. The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that he commenced employment with Fulton Hogan Construction Pty Ltd on 7 August 2023 and that his dismissal took effect on 6 October 2023.

1. On 31 October 2023, the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting a return call to the Commission to confirm the Applicant’s starting date as 7 August 2023.

1. Later that day the Commission emailed correspondence to the Applicant’s nominated email advising that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed the Applicant to file any documents/evidence to support a claim that he had served the required minimum employment period. The 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 the Commission attempted to contact the Applicant on their nominated telephone number on 15 November 2023. The Applicant could not be reached. A voicemail message was left requesting a call to the Commission as, based on the material before the Commission, the Applicant’s matter did not meet the minimum employment period. The message also noted that if the Commission did not hear from the Applicant by 17 November 2023, the matter may be dismissed by a member of the Commission.

1. The Applicant telephoned the Commission on 17 November 2023 confirming his employment dates.

Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum period of employment.

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. I am satisfied the Applicant has not completed the required minimum employment period.

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 Werner Dittrich has not completed the required minimum employment period under the Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR769379.

Printed by authority of the Commonwealth Government Printer

<PR769378>