Elli Summer v Xavier Catholic College Hervey Bay

[2022] FWC 3352

[2022] FWC 3352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elli Summer
v

Xavier Catholic College Hervey Bay

(U2022/11443)

COMMISSIONER BISSETT MELBOURNE, 29 DECEMBER 2022

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

1. On 1 December 2022 Ms Elli Summer 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. Ms Summer advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Xavier Catholic College Hervey Bay on 11 October 2022 and that she was notified of her dismissal on 23 November 2022.

1. On 2 December 2022 the Commission attempted to contact Ms Summer on her nominated telephone number. Ms Summer did not answer so a voicemail message was left requesting a call back.

1. Later that day the Commission sent correspondence to Ms Summer’s nominated email address advising her that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Summer 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 the application may be dismissed without further notice.

1. As the required documentation was not received, on 16 December 2022 the Commission attempted to contact Ms Summer on her nominated telephone number. However, Ms Summer could not be reached. A voicemail message was left requesting a call back.

1. To date Ms Summer has not replied to the Commission’s 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.

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 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.

1. I am satisfied that Ms Summer has not completed the required minimum employment period under the FW Act and accordingly that the application has no reasonable prospect of success.

1. As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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