Zi Tai (Wilson) Yang v Brett
[2023] FWC 336
•9 FEBRUARY 2023
| [2023] FWC 336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Zi Tai (Wilson) Yang
v
Brett
(U2023/101)
| COMMISSIONER BISSETT | MELBOURNE, 9 FEBRUARY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 4 January 2023 Mr Zi Tai (Wilson) Yang 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 Yang advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with “Brett” on 18 November 2022 and that his dismissal took effect on 1 February 2023.
On 9 January 2023 the Commission attempted to contact Mr Yang on his nominated telephone number. A voicemail message was left requesting a call the Commission to discuss his application.
Later that day the Commission emailed correspondence to Mr Yang’s nominated email address advising Mr Yang that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Yang to file any documents/evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.
As the required documentation was not received, on 18 January 2023 the Commission attempted to contact Mr Yang on his nominated telephone number. However, Mr Yang could not be reached. A voicemail message was left requesting that he contact the Commission to discuss the minimum employment period.
On the 27 January 2023 the Commission made a further attempt to contact Mr Yang on his nominated telephone number. However, Mr Yang could not be reached. A voicemail message was left requesting that he contact the Commission to discuss the minimum employment period and was provided with his matter number and the helpline number.
To date Mr Yang has not replied to the Commission’s correspondence.
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 Yang 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 Yang has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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