Ashton Florence Townsend v Project 88 TPF Pty Ltd

[2023] FWC 1339

[2023] FWC 1339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ashton Florence Townsend
v

Project 88 TPF Pty Ltd

(U2023/3654)

COMMISSIONER BISSETT MELBOURNE, 6 JUNE 2023

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

1. On 28 April 2023 Ms Ashton Florence Townsend 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 Townsend advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Project 88 TPF Pty Ltd on 6 February 2023 and that they were notified of their dismissal on 31 March 2023.

1. On 2 May 2023 the Commission attempted to contact Ms Townsend on their nominated telephone number. A voicemail message was left by the Commission, advising Ms Townsend that they had not served the minimum employment period.

1. Later that day the Commission emailed correspondence to Ms Townsend’s nominated email address advising Ms Townsend that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed Ms Townsend to file any documents/evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Ms Townsend’s nominated telephone number requesting that they contact the Commission.

1. Ms Townsend telephoned the Commission on 11 May 2023 and discussed the minimum employment period. Later that day Ms Townsend emailed the Commission advising she would confirm her employment dates on 12 May 2023.

1. As the required documentation was not received, on 22 May 2023 the Commission attempted to contact Ms Townsend on their nominated telephone number. However, Ms Townsend could not be reached. A voicemail message was left requesting that they contact the Commission. A final attempt to contact Ms Townsend on their nominated telephone number was made on 25 May 2023. Another voicemail was left requesting that they contact the Commission.

1. To date Ms Townsend 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 Townsend 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 Townsend 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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