Yasir Jawad v Excess Technology Pty. Ltd

[2024] FWC 1956

[2024] FWC 1956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yasir Jawad
v

Excess Technology Pty. Ltd.

(U2024/6760)

DEPUTY PRESIDENT EASTON SYDNEY, 30 JULY 2024

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

1. On 12 June 2024 Mr Yasir Jawad made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Jawad advised in the Form F2 Unfair Dismissal Application that he commenced employment with Excess Technology Pty. Ltd. on 1 February 2024 and that his dismissal took effect on 28 May 2024.

1. On the information provided by Mr Jawad, he worked for Excess Technology Pty. Ltd for 3 months, 3 weeks and 6 days.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

“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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Mr Jawad’s case it does not matter whether Excess Technology is a small business employer because he does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff sought further information from Mr Jawad about whether he had served the minimum employment period:

(a)On 17 June 2024 and 21 June 2024 the Commission staff contacted Mr Jawad about his application however was unable to reach him.

(b)On 26 June 2024 the Commission staff spoke to Mr Jawad and explained the minimum employment threshold and other applications available to him and suggested that the unfair dismissal application be discontinued. Mr Jawad opted to continue his application.

(c)On 4 July 2024 the Commission staff contacted Mr Jawad again however he remained firm on his decision to proceed with his application and wished for it to be reviewed by a Member of the Commission.

1. To date Mr Jawad has not provided any further information that supports his eligibility to make the application.

Section 587

1. The relevant provisions in s.587 of the Act are 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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.”

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

Does Mr Jawad’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mr Jawad’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr Jawad on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Jawad was employed for approximately 3 months, 3 weeks and 6 days.

1. Mr Jawad was invited by correspondence to provide information that could show that he had in fact completed the minimum employment period. Mr Jawad did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about any facts that could change the outcome of his application.

1. On 10 July 2024 Mr Jawad was also specifically invited to provide submissions on why his matter should not be dismissed under ss.587(1)(a) or 587(1)(c). An SMS was also sent to Mr Jawad telling him that an important email had been sent. Mr Jawad did not respond to this correspondence.

1. I am satisfied that Mr Jawad has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr Jawad’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR777481).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR777480>