Bianca Stiedl v Sexyland Australia Pty Ltd

[2024] FWC 737

[2024] FWC 737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bianca Stiedl
v

Sexyland Australia Pty Ltd

(U2024/1457)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MARCH 2024

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

1. On 12 February 2024 Ms Bianca Stiedl 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 Stiedl advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Sexyland Australia Pty Ltd (the Respondent) in August 2023 and that her dismissal took effect on 24 January 2024.

1. On 13 February 2024 the Commission attempted to contact Ms Steidl on her nominated telephone number. Ms Stiedl could not be reached, and a voicemail message was left requesting she contact the Commission as that on the basis of the dates provided in her Form F2 she may not meet the minimum employment period.

1. Later that day, the Commission also emailed correspondence to Ms Stiedl’s nominated email address advising that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Stiedl 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 her application may be dismissed without further notice.

1. On 19 February 2024 the Commission attempted to contact Ms Stiedl on her nominated telephone number. A voicemail message was left requesting she to contact the Commission.  Later that day the Commission received an email from Ms Steidl advising that she commenced employment with Sexyland Australia Pty Ltd on 15 August 2023 and that her dismissal took effect on 24 January 2024 and she confirmed that she did not serve the required minimum employment period.

1. On 23 February 2024 the Commission emailed Ms Stiedl on her nominated email address in response to her email and requested she contact the Commission to discuss her response.

1. On 26 February 2024, the Commission attempted to contact Ms Steidl on her nominated telephone number. A voicemail message was left requesting Ms Stiedl to contact the Commission and advising her that, based on the information provided in the Form F2, she had not served the minimum employment period and her application was likely be dismissed.  To date, Ms Stiedl 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. 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 prospects of success.

1. As the material before the Commission indicates Ms Stiedl has not completed the required minimum employment period under the FW Act, I am persuaded the 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 with this decision.

DEPUTY PRESIDENT

[1] PR772607.

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