Xin Wang v Southgate Hotel Management Pty. Ltd

[2025] FWC 2

[2025] FWC 2

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Xin Wang
v

Southgate Hotel Management Pty. Ltd.

(U2024/13924)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 JANUARY 2025

Application for an unfair dismissal remedy – minimum employment period – incomplete application – dismissal under s.587 at the Commission’s initiative

1. Mr Xin Wang applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 21 November 2024.

1. Mr Wang stated in his unfair dismissal application (Form F2) that his employment with Southgate Hotel Management Pty Ltd (the Respondent) commenced on 21 May 2024 and that his dismissal took effect on 19 November 2024.

1. On 3 December 2024, the Commission attempted to contact Mr Wang on his nominated telephone number, however, the call was not answered, and no voicemail option was available. Later that day the Commission emailed correspondence to Mr Wang’s nominated email address advising Mr Wang that, based on the information provided in his Form F2, he had not served the minimum employment period. The correspondence directed Mr Wang to file any documentation to support any claim that he had served the applicable minimum employment period under the Act. That correspondence also warned Mr Wang that if he did not contact the Commission within 14 days, his application may be dismissed without further notice

1. On 3 December 2024, Mr Wang emailed the Commission a photo of his termination letter indicating that his employment commencement date was 21 May 2024 and that his dismissal took effect on 19 November 2024. Mr Wang stated: “I was dismissed within the probationary period, without any valid reasons and they couldn’t provide any convincing reasons why I was dismissed felt very discriminatory and disrespectful.”

1. On 4 December 2024, the Commission attempted to contact Mr Wang on his nominated telephone number. The call was not answered, and no voicemail option was available.

1. The Commission made a final attempt to contact Mr Wang on his nominated telephone number on 17 December 2024. The call was not answered, and no voicemail option was available.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

1. Mr Wang needs to have completed a period of employment of at least 6 months with the Respondent to be protected from unfair dismissal. The material before the Commission indicates that Mr Wang has not satisfied this requirement and, therefore, I am persuaded that his application has no reasonable prospects of success. As such, Mr Wang’s unfair dismissal 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] PR782916.

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