Yassin El Idrissi v MSS Security

[2020] FWC 3923

[2020] FWC 3923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yassin El Idrissi
v
MSS Security
(U2020/9566)

COMMISSIONER BISSETT MELBOURNE, 28 JULY 2020

Application for an unfair dismissal remedy.

[1] On 13 July 2020 Mr Yassin El Idrissi 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).

[2] Mr El Idrissi advised in the Form F2 Unfair Dismissal Application (Form F2) that his dismissal from MSS Security took effect on 27 June 2020. A date of commencement of employment was not provided on the Form F2.

[3] On 15 July 2020 the Commission attempted to contact Mr El Idrissi on his nominated telephone number to discuss his application. Mr El Idrissi did not answer the call. A voicemail message was left requesting that he contact the Commission to advise the commencement date of his employment with the respondent. An SMS notification was also sent to Mr El Idrissi’s nominated telephone number requesting that he contact the Commission.

[4] On 16 July 2020 Mr El Idrissi phoned the Commission and advised that his employment with the respondent commenced on 25 May 2020. The Commission advised Mr El Idrissi that based on the information provided, he may not have served the required minimum employment period. Mr El Idrissi advised that he wished to proceed with his application.

[5] Later that day, the Commission emailed correspondence to Mr El Idrissi’s nominated email address advising Mr El Idrissi that on the basis of the information provided by him, he had not served the minimum employment period. The correspondence directed Mr El Idrissi to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if Mr El Idrissi did not contact the Commission within 14 days, his application may be dismissed without further notice. Mr El Idrissi did not respond.

[6] On 17 July 2020 follow up correspondence was sent by email to Mr El Idrissi’s nominated email address. The correspondence advised Mr El Idrissi that while he had advised the Commission he wished to proceed with his application, he had not provided any evidence that he had worked the minimum employment period such that he may be eligible to have his application heard. The correspondence provided Mr El Idrissi with a final opportunity to provide any evidence by 4.00 pm on 24 July 2020. Mr El Idrissi failed to respond.

[7] To date, Mr El Idrissi has not replied to the Commission’s correspondence.

[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[9] 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.

[10] Section 587(1) of the FW Act provides that:

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.

[11] Having regard to the circumstances of this matter I am satisfied that as Mr El Idrissi has not completed the required minimum employment period under the FW Act, his 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 shortly.

COMMISSIONER

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