Chloe Osborn v Avko Staffing Services Pty Ltd
[2024] FWC 951
•23 APRIL 2024
| [2024] FWC 951 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chloe Osborn
v
Avko Staffing Services Pty Ltd
(U2024/3171)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 23 APRIL 2024 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 19 March 2024, Ms Chloe Osborn 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 Osborn advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Avko Staffing Services Pty Ltd on 6 March 2024 and that she was notified of her dismissal on 16 March 2024.
On 22 March 2024, the Commission attempted to contact Ms Osborn on her nominated telephone number. A voicemail message was left requesting that she contact the Commission. Later that day, the Commission emailed correspondence to Ms Osborn’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 Ms Osborn 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.
As the required documentation was not received, on 4 April 2024 the Commission attempted to contact Ms Osborn on her nominated telephone number. However, Ms Osborn could not be reached. A voicemail message was left requesting that Ms Osborn contact the Commission and again advising her that on the basis of the information provided in her Form F2, she had not served the minimum employment period. To date Ms Osborn 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 does not indicate that Ms Osborn has 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] PR773435.
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