Amy Nunnerley v Deeann L Sutton

[2021] FWC 6704

[2021] FWC 6704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal remedy

Amy Nunnerley
v
Deeann L Sutton
(U2021/11328)

COMMISSIONER BISSETT MELBOURNE, 30 DECEMBER 2021

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

[1] On 8 December 2021, Ms Amy Nunnerley (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).

[2] The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Deeann L Sutton on 28 June 2021 and that her dismissal took effect on 28 November 2021.

[3] On 9 December 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission to discuss her application.

[4] Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of the information provided in the Form F2 she had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that, if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 21 December 2021 the Commission made a final attempt to contact the Applicant on her nominated telephone number. The Applicant did not answer the call. A voicemail message was left explaining that based on the information providing in the Form F2 the Applicant did not meet the minimum employment period and advising that if she does not provide the requested documentation by close of business on 23 December 2021 the Commission may consider dismissing the application.

[6] To date, the Applicant has not replied to the Commission’s correspondence nor has she returned the Commission’s calls.

[7] 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.

[8] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and her application has no reasonable prospects of success.

[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 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.

[11] Having regard to the circumstances of this matter I am satisfied that as the Applicant has not completed the required minimum employment period under the FW Act, her 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 shortly.

COMMISSIONER

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