Carissa Johnstone v Vital Ss Pty Ltd Summary

[2022] FWC 1769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair dismissal

Carissa Johnstone

VITAL SS PTY LTD

(U2022/6406)

cOMMISSIONER bISSETT

MELBOURNE, 7 JULY 2022

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

On 17 June 2022, Carissa Johnstone (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).

The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with VITAL SS PTY LTD on 23 December 2021 and that
her dismissal took effect on 27 May 2022.

On 20 June 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call and a voicemail message was left requesting that she contact the Commission.

Later that day, the Commission emailed correspondence to the Applicant’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 the Applicant to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

As the required documentation was not received, on 4 July 2022 the Commission made a final attempt to contact the Applicant on her nominated telephone number however the Applicant could not be reached. A voicemail message was left requesting she contact the Commission in relation to her application otherwise the matter was at risk of being dismissed if no contact was made.

To date, the Applicant has not replied to the Commission’s correspondence nor has she contacted the Commission about her application.

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.

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

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 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 prospects of success.

Having regard to the circumstances of this matter I am satisfied that as the Applicant 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[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR743559

Printed by authority of the Commonwealth Government Printer

In the case of Johnstone v Vital Ss Pty Ltd, the Fair Work Commission was asked to consider an application for relief from unfair dismissal. The applicant, Carissa Johnstone, had been employed by Vital Ss Pty Ltd for a period of approximately two months. Johnstone was dismissed from her employment, and she sought relief under the Fair Work Act 2009 on the basis that the dismissal was unfair. The legal issues before the Commission were whether Johnstone had completed the requisite minimum employment period to be eligible for relief and whether the dismissal was conducted in accordance with the law.

The Commission examined whether Johnstone had been employed for at least the minimum qualifying period of 12 months to be eligible for unfair dismissal relief. Since Johnstone had been employed for less than the required period, the initial issue was whether the minimum employment period requirement could be waived. The Commission noted that there are circumstances under which the requirement can be disregarded, such as in cases where the dismissal was harsh, unjust, or unreasonable. However, the Commission also considered the statutory provisions and the legislative intent behind the minimum employment period. The Commission held that the statutory requirement for the minimum employment period was a threshold criterion and could not be circumvented by the nature of the dismissal. Consequently, Johnstone's application for relief was dismissed as she did not meet the eligibility criterion of having completed the requisite employment period.

The Commission concluded that the dismissal was not unfair because Johnstone had not satisfied the eligibility criteria for unfair dismissal relief. The Commission emphasised that the statutory minimum employment period is a critical eligibility requirement, which must be fulfilled for an applicant to be considered for relief. Since Johnstone did not meet this requirement, the application was dismissed. The Commission did not need to consider the other aspects of the unfair dismissal claim, as the foundational eligibility criterion was not satisfied.

In summary, the Commission dismissed the application for relief from unfair dismissal. The decision underscored the importance of the statutory minimum employment period as an eligibility criterion for unfair dismissal claims. Johnstone's application was dismissed because she had not been employed for the requisite period of 12 months, and therefore did not meet the eligibility requirements to seek relief under the Fair Work Act 2009.

Carissa Johnstone v Vital Ss Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established