Chelsea Jenner v The Trustee For Waterfront Tavern Freehold Unit Trust

[2024] FWC 732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chelsea Jenner
v

The Trustee For Waterfront Tavern Freehold Unit Trust

(U2024/1076)

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.

On 1 February 2024, Ms Chelsea Jenner 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).

Ms Jenner advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee For Waterfront Tavern Freehold Unit Trust (the Respondent) on 2 October 2023 and that her dismissal took effect on 16 January 2024.

On 2 February 2024, the Commission attempted to contact Ms Jenner on her nominated telephone number. Ms Jenner could not be reached, and a voicemail message was left requesting that she contact the Commission as the dates provided in her application form did not meet the minimum employment period. Later that day the Commission emailed correspondence to Ms Jenner’s nominated email address advising her that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Jenner 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. An SMS notification was also sent to Ms Jenner’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 14 February 2024, and again on 18 March 2024, the Commission attempted to contact Ms Jenner on her nominated telephone number. However, Ms Jenner could not be reached. Voicemail messages were left on both occasions requesting that she reply to the email sent on 2 February 2024 or call the Commission helpline. To date Ms Jenner 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. 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 prospects of success.

As the material before the Commission indicates Ms Jenner 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] PR772595.

Printed by authority of the Commonwealth Government Printer

Chelsea Jenner applied to the Fair Work Commission for a remedy for unfair dismissal, alleging she was dismissed by The Trustee For Waterfront Tavern Freehold Unit Trust on 16 January 2024. The Commission subsequently determined that Ms Jenner had not met the minimum employment period requirement, a prerequisite for protection under the Fair Work Act 2009. The Act stipulates that an employee must complete six months of continuous employment with a non-small business employer, or one year with a small business employer, before being protected from unfair dismissal. Given Ms Jenner's employment period was less than six months, the Commission found her application had no reasonable prospects of success.

The primary legal issue was whether Ms Jenner had completed the minimum employment period as required by the Act. The Commission found that since Ms Jenner's employment did not meet the statutory requirement, her application for unfair dismissal was not viable. Additionally, the Commission considered whether the application was frivolous or vexatious, and whether it was made in accordance with the Act. It concluded that the application could be dismissed for lacking reasonable prospects of success under section 587(1)(c) of the Act.

In dismissing the application, the Deputy President noted that Ms Jenner had failed to respond to multiple attempts by the Commission to contact her. This lack of response, combined with the statutory requirement not being met, led to the conclusion that the application was without merit. The Deputy President noted that an order dismissing the application would be issued to formalise the decision.

In light of the dismissal of the application, an Order will be issued by the Fair Work Commission to reflect the decision. This Order will formalise the dismissal of Ms Jenner's application for unfair dismissal under section 587(1)(c) of the Fair Work Act 2009.

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Background to the litigation

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Legal Principle Established