Cheyenne Jahn v Geelong Property Services Pty Ltd

[2021] FWC 6324

[2021] FWC 6324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheyenne Jahn
v
Geelong Property Services Pty Ltd
(U2021/9244)

COMMISSIONER BISSETT MELBOURNE, 16 NOVEMBER 2021

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

[1] On 14 October 2021, Ms Cheyenne Jahn (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).

[2] The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Geelong Property Services Pty Ltd on 24 May 2021 and that her dismissal took effect on 18 October 2021.

[3] On 20 October 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss the application however the Applicant failed to answer the call. A voicemail message was left requesting the Applicant contact the Commission in regard to her application.

[4] Later that day, the Commission wrote to the Applicant advising that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence required the Applicant to file any documents and evidence to support her claim of having served the required minimum employment period. The correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. The Applicant failed to file the requested documentation.

[5] On 4 November 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission by no later than close of business that day otherwise the Commission may consider dismissing the application.

[6] The Applicant emailed the Commission later that day requesting an update on her application.

[7] On 5 November 2021, the Commission again attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission by close of business that day and that failure to do so may result in the application being dismissal without further notice.

[8] Later that day email correspondence was sent to the Applicant advising that the Commission had made multiple attempts to contact her to discuss the minimum employment requirements. The correspondence highlighted the requirement for the Applicant to file documentation and evidence. The correspondence also advised the Applicant that her application may be dismissed without further notice if she did not file the requested documentation.

[9] On 5 November 2021, the Commission received email correspondence from the Applicant advising she does not accept calls from No Caller ID and again requested advice on how to proceed with the application.

[10] Following this correspondence the Commission wrote to the Applicant. The correspondence pointed out that on the basis of the information provided in the Form F2, the minimum employment period has not been met. The correspondence also mentioned the General Protections provisions under s.365 of the FW Act and requested a notice of discontinuance which at the date of this decision has not occurred.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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

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