Asma Habiba Konok v Whole Farms Market
[2023] FWC 1571
•30 JUNE 2023
| [2023] FWC 1571 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Asma Habiba Konok
v
Whole Farms Market
(U2023/4005)
| COMMISSIONER BISSETT | MELBOURNE, 30 JUNE 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 9 May 2023 Ms Asma Habiba Konok 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 Konok advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Whole Farms Market on 11 January 2023 and that her dismissal took effect on 8 May 2023.
On 11 May 2023 the Commission emailed correspondence to Ms Konok’s nominated email address advising Ms Konok that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Konok 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.
Later that day the Commission attempted to contact Ms Konok on her nominated telephone number. A voicemail message was left requesting a call back regarding the minimum employment period.
Ms Konok contacted the Commission in response to the attempt to contact earlier in the day. The Commission confirmed the dates of employment as provided on the Form F2 and reiterated that Ms Konok had not met the required minimum employment period. Information was provided to Ms Konok about the general protections application involving dismissal (Form F8), and also information about the Fair Work Ombudsman as Ms Konok advised of potential underpayment of wages. It was further explained to Ms Konok that she will need to contact the Commission once she decides how to proceed with her matter, failure to do so may result in the matter being referred to a Member for further consideration. Ms Konok was also given the opportunity to discontinue the matter.
As the required documentation was not received, on 22 May 2023 the Commission attempted to contact Ms Konok on their nominated telephone number. However, Ms Konok could not be reached. A voicemail message was left requesting that Ms Konok call the Commission back.
To date Ms Konok 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. I am satisfied Ms Konok has not completed the required minimum employment period.
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 Ms Konok 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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