Aaron Bailey v Ozroll [2023] FWC 2002

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Bailey v Ozroll (U2023/6531) COMMISSIONER BISSETT MELBOURNE, 16 AUGUST 2023 Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative. [1] On 18 July 2023, Mr Aaron Bailey 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 Bailey advised in the Form F2 Unfair Dismissal Application (Form F2) that he commenced employment with Ozroll (the Respondent) on 17 July 2023 and that his dismissal took effect on 17 July 2023. [3] On 20 July 2023, the Commission attempted to contact Mr Bailey on his nominated telephone number. A voicemail message was left by the Commission advising Mr Bailey that he had not served the minimum employment period and requested that he contact the Commission. [4] Later that day, the Commission emailed correspondence to Mr Bailey’s nominated email address advising Mr Bailey that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Bailey to file any documents or other evidence to support his claim that he had served the required minimum employment period. This correspondence also warned that if Mr Bailey did not contact the Commission within 14 days, the application may be dismissed without further notice. [5] On 20 July 2023, Mr Bailey emailed the Commission and advised that he had worked for the Respondent for one day. Later this day, the Commission emailed Mr Bailey providing him further details on the minimum employment period. Mr Bailey then sent a reply email to this correspondence informing the Commission he had worked for a period of 10 hours with the Respondent. [6] The Commission further attempted to contact Mr Bailey this day by phoning Mr Bailey’s nominated contact number, but Mr Bailey could not be reached. A voicemail message was left for Mr Bailey requesting that he contact the Commission. [2023] FWC 2002 DECISION -- 1 of 2 -- [2023] FWC 2002 2 [7] On 2 August 2023, the Commission further attempted to contact Mr Bailey on his nominated telephone number. However, Mr Bailey could not be reached. A voicemail message was left requesting that Mr Bailey call back the Commission by close of business 3 August 2023. [8] 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 Bailey has not completed the required 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 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. [11] As Mr Bailey has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR765100> -- 2 of 2 --