Delayesha Wood v Marketorganics.Com.Au Pty Ltd

[2023] FWC 3068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Delayesha Wood
v

Marketorganics.Com.Au Pty Ltd

(U2023/9671)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 NOVEMBER 2023

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

On 5 October 2023, Ms Delayesha Wood (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).

Ms Wood advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Marketorganics.Com.Au Pty Ltd (Respondent) on 21 August 2023 and that her dismissal took effect on 27 September 2023.

On 10 October 2023, the Commission attempted to contact Ms Wood on her nominated telephone number. A voicemail message was left requesting that Ms Wood contact the Commission to her confirm her employment dates. Later that day, the Commission emailed correspondence to Ms Wood’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 Wood 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.

On 30 October 2023, as the required documentation was not received, the Commission attempted to contact Ms Wood on her nominated telephone number. However, Ms Wood could not be reached. A voicemail message was left requesting that Ms Wood file the required documentation and advising her that if the Commission did not receive a reply within 3 days her matter may be dismissed. To date Ms Wood 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 prospect of success.

As the material before the Commission indicates Ms Wood 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] PR768537.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Delayesha Wood applied to the Fair Work Commission for relief on the basis of an unfair dismissal by Marketorganics.Com.Au Pty Ltd. Ms Wood commenced employment with the Respondent on 21 August 2023 and was dismissed on 27 September 2023. The Fair Work Act 2009 (FW Act) provides that a person is protected from unfair dismissal if they have completed a minimum period of employment. If the employer is not a small business employer, this is six months; if the employer is a small business employer, it is one year. Ms Wood applied for relief from unfair dismissal on 5 October 2023, but did not provide any evidence that she had completed the requisite period of employment. The Commission contacted Ms Wood on two occasions, seeking further information, but she did not respond. Accordingly, the Commission determined that the application had no reasonable prospect of success and dismissed it on the basis that it was unlikely to succeed.

The Commission was required to determine whether Ms Wood had completed the requisite minimum period of employment before she could be protected from unfair dismissal. If the requisite period of employment had not been completed, the Commission had the power to dismiss the application. The Commission considered that it was unlikely that Ms Wood had completed the requisite period of employment on the basis of the information before it. It was also necessary to consider whether the application was frivolous or vexatious, or not made in accordance with the FW Act.

The Commission considered that the application was not frivolous or vexatious and was made in accordance with the FW Act. However, it was necessary to consider whether the application had a reasonable prospect of success. The Commission considered that, given the information before it, it was unlikely that Ms Wood had completed the requisite period of employment. As such, it was unlikely that the application had a reasonable prospect of success. The application was dismissed under s.587(1)(c) of the FW Act.

The Commission ordered that the application be dismissed. An Order to this effect will be issued with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established