Amy Fato v Green Star Cleaning Pty. Ltd

[2023] FWC 2740

[2023] FWC 2740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Fato
v

Green Star Cleaning Pty. Ltd.

(U2023/8824)

COMMISSIONER BISSETT MELBOURNE, 23 OCTOBER 2023

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

1. On 14 September 2023 Ms Amy Fato 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 Fato advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Green Star Cleaning Pty. Ltd. on 8 May 2023 and that her dismissal took effect on 28 August 2023.

1. On 20 September 2023 the Commission attempted to contact Ms Fato on her nominated telephone number. However, the call was not answered and a voicemail message could not be left as the service provider could not connect the call.

1. Later that day, the Commission emailed correspondence to Ms Fato’s 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 her 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 the application may be dismissed without further notice. An SMS notification was also sent to Ms Fato’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, on 2 October 2023 the Commission attempted to contact Ms Fato on her nominated telephone number. However, she could not be reached and a voicemail message could not be left.

1. Later that day, the Commission sent the correspondence previously sent on 20 September 2023 to the Ms Fato’s nominated email address to remind her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. That correspondence also warned that if she did not contact the Commission by the close of business on 2 October 2023, the application may be dismissed without further notice.

1. To date Ms Fato 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. I am satisfied Ms Fato has not completed the required minimum employment period.

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 Ms Fato 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

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