Chloe Fletcher-Daniel v Department For Correctional Services

[2024] FWC 69

[2024] FWC 69

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chloe Fletcher-Daniel
v

Department For Correctional Services

(U2023/12002)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2024

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

1. On 3 December 2023, Ms Chloe Fletcher-Daniel (the 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).

1. Ms Fletcher-Daniel advised in her Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Department for Correctional Services (the Respondent) on 24 July 2023, and that her dismissal took effect on 27 November 2023.

1. On 7 December 2023, the Commission attempted to contact Ms Fletcher-Daniel on her nominated telephone number. A voicemail message was left requesting that she contact the Commission to confirm her dates of employment. Later that day the Commission emailed correspondence to Ms Fletcher-Daniel’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 Fletcher-Daniel 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.

1. On 19 December 2023, the Commission attempted to contact Ms Fletcher-Daniel on her nominated telephone number. However, Ms Fletcher-Daniel could not be reached. A voicemail message was left requesting that she urgently contact the Commission to confirm her dates of employment. To date, Ms Fletcher-Daniel has not replied to the Commission’s correspondence.

1. 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.

1. 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.

1. As the material before the Commission indicates Ms Fletcher-Daniel has not completed the required minimum employment period under the FW Act, I am satisfied 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] PR770119.

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<PR770118>