Donna O'Shea v Envision Abilities T/A Eva

[2021] FWC 512

[2021] FWC 512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna O’Shea
v
Envision Abilities T/A Eva
(U2021/256)

COMMISSIONER BISSETT MELBOURNE, 2 FEBRUARY 2021

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

[1] On 10 January 2021 Ms Donna O'Shea 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).

[2] Ms O'Shea advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Envision Abilities T/A Eva on 2 October 2020 and that her dismissal took effect on 20 December 2020.

[3] On 11 January 2021 the Commission attempted to contact Ms O'Shea on her nominated telephone number. A voicemail message was left requesting Ms O'Shea to contact the Commission to confirm her employment period and to discuss payment of the filing fee.

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

[5] As the required documentation was not received, on 27 January 2021, the Commission attempted to contact Ms Donna O'Shea via her nominated telephone number. However, Ms O'Shea could not be reached. A voicemail message was left advising that the application fee was outstanding and that her employment period may not meet the minimum employment period. The applicant was informed that her application may be dismissed if no further advise was received from the applicant by 28 January 2021.

[6] To date, Ms O'Shea has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Ms O'Shea has not completed the required minimum employment period under the FW Act and that 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 with this decision.

COMMISSIONER

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