Charlea Wamsley v Lesley Wilson
[2024] FWC 1188
•8 MAY 2024
| [2024] FWC 1188 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Charlea Wamsley
v
Lesley Wilson
(U2024/3738)
| COMMISSIONER JOHNS | MELBOURNE, 8 MAY 2024 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 2 April 2024, Charlea Wamsley (Applicant), made an application to the Fair Work Commission (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 they commenced employment with Lesley Wilson on 27 March 2024 and that their dismissal took effect on 27 March 2024.
On 7 April 2024 the Commission emailed correspondence to the Applicant’s nominated email address advising that it appeared that the date of employment provided on the application was incomplete. This correspondence advised that this date must be provided to establish that the minimum employment period had been served. The correspondence directed the Applicant to confirm their employment start date and to file any documents/evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.
On 12 April 2024 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left advising that based on the application it appeared that the minimum employment period of six months had not been met and requested the Applicant to contact the Commission in relation to their matter.
As the required documentation was not received, on 23 April 2024 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left advising that the dates on the application indicated that the minimum employment period had not been met and requested that the Applicant contact the Commission. The voicemail also advised that if no contact was received by close of business on 26 April 2024 the matter was at risk of being dismissed.
To date the Applicant has not replied to the Commission’s correspondence.
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. I am fortified in this position considering the Applicant’s comment in the Form F2:
‘The policy on the agreement was 6 months minimum and they cut me short so I would like to be either reimbursed or an apology’.
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 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.
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 and I do so order [PR774608].
COMMISSIONER
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