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Fair Work Act 2009
s.394—Unfair dismissal
Alfred Nasslander
v
Cairns & District Aboriginal & Torres Strait Islanders Corpo
(U2020/14439)
COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2020
Application for relief from unfair dismissal – minimum employment period – dismissal under
s.587 at the Commission’s initiative.
[1] On 4 November 2020 Mr Alfred Nasslander 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). The application was submitted on behalf of Mr Nasslander by Employee Dismissal
Claims.
[2] Mr Nasslander advised in the Form F2 Unfair Dismissal Application (Form F2) that he
commenced employment with Cairns & District Aboriginal & Torres Strait Islanders Corpo
on 4 September 2020 and that his dismissal took effect on 13 October 2020.
[3] On 5 November 2020, the Commission attempted to contact Mr Nasslander’s
representative on their nominated telephone number. A voicemail message was left requesting
they call back to confirm dates of employment and to pay the filing fee.
[4] Later that day, the Commission emailed correspondence to Mr Nasslander and his
representative’s nominated email address advising that based on the information provided in
the Form F2, Mr Nasslander had not served the minimum employment period. The
correspondence directed Mr Nasslander 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 Nasslander did not contact the Commission within 14 days, the application
may be dismissed without further notice. An SMS notification was also sent to Mr
Nasslander’s nominated telephone number, requesting that he contact the Commission.
[5] On 13 November 2020 Mr Nasslander’s representative called the Commission and
was informed that based on the information provided in the form F2 that Mr Nasslander did
not meet the minimum employment period. The representative advised the Commission that
they will investigate and contact the Commission in due course.
[2020] FWC 6325
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 6325
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[6] As neither the required documentation was received or phone contact made, on 17
November 2020 the Commission attempted to contact Mr Nasslander via his nominated
telephone number. However, Mr Nasslander could not be reached. A voicemail message was
left advising that his application was at risk of being dismissed and to contact Fair Work
Commission. The Commission also attempted to contact Mr Nasslander’s representative and
they could not be reached. A voicemail message was left advising that the application is at
risk of being dismissed and to contact Fair Work Commission
[7] On 18 November 2020 Mr Nasslander’s representative contacted the Commission to
confirm status of matter. The representative advised that they are clarifying the employment
dates and will notify the Commission.
[8] To date, neither Mr Nasslander nor his representative have replied to the
Commission’s correspondence.
[9] 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.
[10] In the circumstances of this matter, I am satisfied Mr Nasslander has not completed
the required minimum employment period and his application has no reasonable prospects of
success. It is astounding that the Applicant’s representative – Employee Dismissal Claims –
allowed the application to be made in circumstances where, on the information provided on
the Form F2, the Applicant is not eligible to make such a claim. It would be expected that an
organisation that purports to represent applicants in unfair dismissal matters is not cognisant
of the basic requirements necessary to make a valid claim.
[11] 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.
[2020] FWC 6325
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[12] 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.
[13] Having regard to the circumstances of this matter I am satisfied that as Mr Nasslander
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 Order1 to this effect will be issued shortly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR724858
Endnote:
1 PR724859
THE FAIR WORK MMISSION THE SEAL
