Aya Alkhafaji v New Vision Psychology Pty. Ltd

[2024] FWC 1289

[2024] FWC 1289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aya Alkhafaji
v

New Vision Psychology Pty. Ltd.

(U2024/3380)

DEPUTY PRESIDENT EASTON SYDNEY, 16 MAY 2024

Application for an unfair dismissal remedy

1. On 25 March 2024 Ms Aya Alkhafaji made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. Ms Alkhafaji advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with New Vision Psychology Pty Ltd on 11 March 2024 and that her dismissal took effect on 25 March 2024.

1. On 27 March 2024 the Commission attempted to contact Ms Alkhafaji on her nominated telephone number. A voicemail message was left explaining the minimum employment period requirement and requesting that Ms Alkhafaji contact the Commission to discuss her matter.

1. Later that day the Commission emailed correspondence to Ms Alkhafaji’s nominated email advising her that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Alkhafaji to file any documents/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.

1. As the required documentation was not received, on 17 April 2024 the Commission attempted to contact Ms Alkhafaji on her nominated telephone number. However, Ms Alkhafaji could not be reached. A voicemail message was left requesting Ms Alkhafaji to contact the Commission regarding her matter. The voicemail message advised that if she did not confirm her intentions by close of business 18 April 2024, her matter may be dismissed.

1. To date Ms Alkhafaji has not replied to the Commission’s correspondence.

1. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Ms Alkhafaji has not completed the required minimum employment period.

1. Section 383 of the 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 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 Alkhafaji has not completed the required minimum employment period under the Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act.

1. I have separately made an order to this effect (PR775084).

DEPUTY PRESIDENT

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