Amanda Phillips v Classy Life Pty Ltd

[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.

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).

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.

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.

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.

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

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 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

[1] PR768153.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Amanda Phillips for relief from unfair dismissal against her employer, Classy Life Pty Ltd. Ms Phillips commenced employment with the Respondent on 28 August 2023 and was dismissed on 21 September 2023. She applied to the Fair Work Commission under section 394 of the Fair Work Act 2009 for a remedy for unfair dismissal. The Commission was required to determine whether the application was made in accordance with the Act, whether it was frivolous or vexatious, and whether it had a reasonable prospect of success. In particular, the Commission considered whether Ms Phillips had served the minimum employment period, which is either six months or one year depending on the size of the employer.

The Fair Work Act 2009 requires an employee to have completed a minimum employment period before being protected from unfair dismissal. The minimum employment period is six months if the employer is not a small business employer and one year if the employer is a small business employer. The Commission determined that Ms Phillips had not served the required minimum employment period. Section 587(1)(c) of the FW Act allows the Commission to dismiss an application if it has no reasonable prospect of success. Given that Ms Phillips had not served the required minimum employment period, the Commission was satisfied that her application had no reasonable prospect of success.

In light of the above, the Deputy President dismissed the application under section 587(1)(c) of the FW Act. The Deputy President found that the application did not comply with the Act because Ms Phillips had not served the required minimum employment period. The application was also found to be without merit, as there was no reasonable prospect of success. The Deputy President ordered that the application be dismissed and that an Order be issued to this effect.

The final orders of the Commission were that Ms Phillips' application for relief from unfair dismissal be dismissed, and an Order to this effect be issued. This decision underscores the importance of meeting the statutory requirements for protection from unfair dismissal, including serving the minimum employment period. Failure to do so can result in the dismissal of an application under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established