Amy Phillips v Isis Community Preschool & Kindergarten

[2023] FWC 846

[2023] FWC 846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Phillips
v

Isis Community Preschool & Kindergarten

(U2023/2014)

COMMISSIONER BISSETT MELBOURNE, 6 APRIL 2023

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

1. On 10 March 2023 Mrs Amy Phillips 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. Mrs Phillips advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Isis Community Preschool & Kindergarten on 17 January 2023 and that her dismissal took effect on 9 March 2023.

1. On 15 March 2023, the Commission attempted to contact Mrs Phillips on her nominated telephone number. Mrs Phillips did not answer the call so a message was left advising her that she may not have served the minimum employment period and to contact the Commission.

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

1. As the required documentation was not received, on 27 March 2023, the Commission attempted to contact Mrs Phillips on her nominated telephone number. However, Mrs Phillips could not be reached. A message was left advising that she may not have met the MEP and to contact the Commission.

1. To date Mrs 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. I am satisfied Mrs Phillips 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 Mrs Phillips 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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