Amanda Phillips v Classy Life Pty Ltd

[2023] FWC 2944

[2023] FWC 2944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Phillips
v

Classy Life Pty Ltd

(U2023/9184)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 NOVEMBER 2023

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

1. On 21 September 2023, Ms Amanda Phillips (Applicant) 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).

1. Ms Phillips advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Classy Life Pty Ltd (Respondent) on 28 August 2023 and that her dismissal took effect on 21 September 2023.

1. On 28 September 2023, the Commission emailed correspondence to Ms Phillips’ nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Phillips to file any documents or other evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days, by 12 October 2023, her application may be dismissed without further notice. An SMS notification was also sent to Ms Phillips’ nominated telephone number requesting that she contact the Commission.

1. On 17 October 2023 the Commission attempted to contact Ms Phillips on her nominated telephone number. A voicemail message advised Ms Phillips that she appeared to have not served the minimum employment period, and she was advised to call the Commission. To date Ms Phillips has not replied to the Commission’s correspondence.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.

1. 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.

1. 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.

1. As the material before the Commission indicates Ms Phillips has not completed the required minimum employment period under the FW Act, I am satisfied the 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 with this decision.

DEPUTY PRESIDENT

<PR768152>

[1] PR768153.

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