Xiaojie Shi v Aveo Group Limited
[2023] FWC 1853
•31 JULY 2023
| [2023] FWC 1853 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Xiaojie Shi
v
Aveo Group Limited
(U2023/5674)
| COMMISSIONER BISSETT | MELBOURNE, 31 JULY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 26 June 2023 Mr Xiaojie Shi 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).
Mr Shi advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Aveo Group Limited at “the end of November, 2022” and that his dismissal took effect on 25 May 2023.
On 29 June 2023, the Commission attempted to contact Mr Shi on his nominated telephone number. A voicemail message was left inquiring as to the length of Mr Shi’s employment and as to the date of his employment’s termination.
Later that day, the Commission emailed correspondence to Mr Shi’s nominated email address explaining that, based on the information provided in the Form F2, he may not have served the minimum employment period. The correspondence directed Mr Shi to file any documents or other evidence to support his 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.
In reply to this correspondence, Mr Shi contacted the Commission that same day and advised that he was employed by Aveo Group Limited from 28 November 2022 until 25 May 2023. The Commission advised Mr Shi that his employment had not met the necessary minimum employment period. In this telephone call, Mr Shi was provided with information about the general protections application that he could make but was advised that should he make this application, it would be out of time. Before the Commission could receive instructions as to whether he wished to discontinue his application or lodge another application, Mr Shi terminated the telephone call due to the quality of the telephone call. As the reception was quite poor, the audio dropped out so Mr Shi could no longer hear the Commission.
Later that day, the Commission contacted Mr Shi requesting advice as to whether he wished to discontinue his application due to his employment not meeting the minimum employment period and as to whether he would like information regarding the general protections application to be sent to him. Before the Commission could finish reiterating the previous telephone call, the telephone call disconnected again.
Due to connectivity issues, an email was then sent to Mr Shi requesting that he contact the Commission to continue discussing his enquiry and provide him with the relevant information.
As the required documentation was not received, on 12 July 2023, the Commission contacted Mr Shi on his nominated telephone number to discuss the minimum employment period and to discuss the possibility of lodging a general protections application. The Commission advised Mr Shi again that he may lodge a general protections application but that this application would still be out of time. Mr Shi advised that he understood that he did not meet the necessary minimum employment period but did not consent to withdraw his application.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Mr Shi has not completed the required minimum employment period.
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.
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.
As Mr Shi has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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