Brooke Therese Watson v Cotton on Group

[2022] FWC 1200

[2022] FWC 1200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brooke Therese Watson
v

Cotton On Group

(U2022/4972)

COMMISSIONER O’NEILL MELBOURNE, 17 MAY 2022

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

1. On 2 May 2022, Ms Brooke Therese Watson 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 Watson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Cotton On Group on 13 December 2021 and that she was notified of her dismissal on 12 April 2022.

1. On 4 May 2022, the Commission attempted to contact Ms Watson on her nominated telephone number. A voicemail message was left advised her that she had not served the minimum employment period.

1. Later that day, the Commission emailed correspondence to Ms Watson’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed her to file any documents/evidence to support her claim that they 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 4 May 2022, Ms Watson wrote to the Commission indicating that she has been employed with Cotton On since 26 October 2021, but her contract for her position started on 13 December 2021. Ms Watson included an image of an email dated 26 October 2021 indicating that she was being offered the role of ‘Full Time Sales Assistant – Cotton on Forster.’ The new commencement date provided by Ms Watson still did not meet the minimum employment period for this application.

1. On 11 May 2022, the Commission attempted to contact Ms Watson via her nominated telephone number. A voicemail message was left requesting a call back.

1. To date, Ms Watson has not replied to the Commission’s request.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

1. In the circumstances of this matter, I am satisfied Ms Watson has not completed the required minimum employment period and her application has no reasonable prospects of success.

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 that:

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. Having regard to the circumstances of this matter I am satisfied that as Ms Watson has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

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