Claudia Sandra Abadi Ghadim v Baptistcare WA Limited

[2023] FWC 189

[2023] FWC 189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Claudia Sandra Abadi Ghadim
v

Baptistcare WA Limited

(U2023/45)

COMMISSIONER BISSETT MELBOURNE, 25 JANUARY 2023

Application for an unfair dismissal remedy

1. On 3 January 2023 Ms Claudia Sandra Abadi Ghadim (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. The Applicant advised in her Form F2 Unfair Dismissal Application (Form F2) that she had commenced employment with Baptistcare WA Limited (the Respondent) on 20 June 2022 and that she was notified of her dismissal and the dismissal took effect on 16 December 2022.

1. On 8 January the Commission emailed correspondence to Ms Abadi Ghadim’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 Abadi Ghadim to file any documents or other evidence to support her claim that she had served the required minimum employment period.

1. On 9 January 2023 Ms Abadi Ghadim telephoned the Commission to make payment of the filing fee. During that telephone call the Commission referred to the email sent to Ms Abadi Ghadim the day prior and advised her that on the basis of the material provided in her Form F2 she had not served the minimum employment period. Ms Abadi Ghadim confirmed that she wished to continue with her matter and that she would provide further documentation to the Commission.

1. Later that day Ms Abadi Ghadim sent the Commission copy of an email from the Respondent that was sent to her on 14 June 2022 after she signed the employment contract. The contract itself was not provided to the Commission.

1. On 16 January 2023 my chambers sent correspondence to Ms Abadi Ghadim’s nominated email address advising that my preliminary view was that she had not completed the minimum employment period because ss. 382-384 and s.22 of the FW Act operate to only include periods of paid continuous service when determining the minimum employment period. Ms Abadi Ghadim was provided the opportunity to file any further material by 4.00 pm 19 January 2023.

1. Ms Abadi Ghadim has not replied to this 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 of at least the minimum employment period

1. 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 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.

1. Having regard to the circumstances of this matter I am satisfied that as Ms Abadi Ghadim has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success.

1. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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