Breanna Mandel v Borg Manufacturing Pty Limited

[2023] FWC 2541

[2023] FWC 2541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Breanna Mandel

v

Borg Manufacturing Pty Limited

(U2023/7649)

COMMISSIONER BISSETT MELBOURNE, 5 OCTOBER 2023

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

1. On 16 August 2023, Breanna Mandel (the Applicant) 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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Borg Manufacturing Pty Limited on 27 February 2023 and that her dismissal took effect on 16 August 2023.

1. On 20 August 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed the Applicant to file any documents 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. On 20 August 2023, the Applicant provided correspondence to the Commission. The Applicant advised in this correspondence that her employment was subject to a six-month probationary period, which was to end on 27 August 2023. The Applicant further advised that the dismissal occurred before that date. The Applicant stated that she would “understand if the matter cannot be heard”.

1. On 21 August 2023, the Commission attempted to contact the Applicant on her nominated telephone number. The Applicant could not be reached. A voicemail message was left advising that the Commission had received the Applicant’s correspondence regarding the minimum employment period. The message further advised that the Applicant’s consent was required to discontinue the matter, and it was requested that the Applicant call or email to advise how they wished to proceed.

1. As no further correspondence was received, on 5 September 2023, the Commission attempted to contact the Applicant on her nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant call back as soon as possible to clarify whether she wished to discontinue the matter.

1. To date, the Applicant has not provided any further correspondence to the Commission.

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 the Applicant 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 the Applicant 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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