Elisha Merrick v Day By Day Property Solutions

[2020] FWC 6664

[2020] FWC 6664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elisha Merrick
v
Day By Day Property Solutions
(U2020/15162)

COMMISSIONER BISSETT MELBOURNE, 11 DECEMBER 2020

Application for relief from unfair dismissal – minimum employment period not met – application dismissed in accordance with s.587

[1] On 23 November 2020, Miss Elisha Merrick 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] Miss Merrick advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Day By Day Property Solutions (the Respondent) on 7 October 2020 and that she was notified of her dismissal on 23 November 2020.

[3] On 24 November 2020, the Commission attempted to contact Miss Merrick on her nominated telephone number. A voicemail message was left advising Miss Merrick that according to the dates of employment provided on her application, it appeared that the required minimum employment period had not been met. The relevant matter number and contact number was provided to Miss Merrick with a request for her to contact the Commission.

[4] Later that day, the Commission emailed correspondence to Miss Merrick’s nominated email address advising her that based on the information provided in the Form F2, she had not served the minimum employment period required by the FW Act. The correspondence directed Miss Merrick to file any documents and/or evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss Merrick did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss Merrick’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 7 December 2020 the Commission attempted to contact Miss Merrick via her nominated telephone number. However, Miss Merrick could not be reached. A voicemail message was left advising that the Commission still had not received a direction from her on how she would like to proceed with her matter. She was advised in the voicemail message to contact the Commission urgently as her matter may be eligible for a decision to be issued.

[6] To date, Miss Merrick has not replied to the Commission’s correspondence or made any attempt to contact the Commission as directed.

[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] In the circumstances of this matter, I am satisfied Miss Merrick has not completed the required minimum employment period and her application has no reasonable prospects of success.

[9] 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.

[10] 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.

[11] Having regard to the circumstances of this matter I am satisfied that as Miss Merrick 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 to this effect will be issued shortly.

COMMISSIONER

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