Devyani Devarkonda v Cheil

[2022] FWC 1586

[2022] FWC 1586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Devyani Devarkonda
v

Cheil

(U2022/4864)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2022

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

1. On 28 April 2022, Ms Devyani Devarkonda (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 the Form F2 – Unfair dismissal application (Form F2) that she commenced employment with Cheil on 7 March 2022 and that she was notified of her dismissal on 22 April 2022.

1. On 2 May 2022 the Commission telephoned the Applicant to confirm the commencement date of employment and to discuss the date of dismissal. The Commission provided the Applicant with information regarding general protections applications as an alternative however the Applicant advised that she wished to proceed with her unfair dismissal application.

1. Later that day the Commission sent correspondence to the Applicant’s nominated email address advising that, based on the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. As the Applicant had not provided the requested information, on 24 May 2022 the Commission telephoned the Applicant to discuss her application. The Applicant advised the Commission that she wanted to proceed with her application.

1. On 6 June 2022 the Commission sent the Applicant an email stating that on the basis of the information in her application she had not served the minimum employment period of 6 months as required by the FW Act. The Applicant was given until 4.00 pm on Monday 13 June 2002 to provide evidence that she was employed for 6 months or more. The correspondence warned that failure to provide evidence will result in the application being dismissed.

1. To date, the Applicant has not provided the requested information.

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. 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.

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 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

[1] PR742926

Printed by authority of the Commonwealth Government Printer

<PR742925>