Emma Benson v Ampol Retail Pty Ltd

[2023] FWC 2560

[2023] FWC 2560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Emma Benson
v

Ampol Retail Pty Ltd

(U2023/7768)

COMMISSIONER BISSETT MELBOURNE, 6 OCTOBER 2023

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

1. On 18 August 2023. Emma Benson (the 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 Ampol Retail Pty Ltd on 26 June 2023 and that her dismissal took effect on 18 August 2023.

1. On 23 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that she contact the Commission as, based on the information provided in the Form F2, she had not served the minimum employment period.

1. On 5 September 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising her 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 or other evidence to support her claim that she had served the required minimum employment period. This correspondence also warned that if she did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS message was also sent to the Applicant’s nominated telephone number advising the Applicant that there was an issue with her application and requesting that she contact the Commission.

1. On 8 September 2023, the Commission attempted to contact the Applicant on her nominated telephone number. However, the Applicant could not be reached. A voicemail message was left advising the Applicant that it appeared she had not served the minimum employment period. The message requested the Applicant to contact the Commission by close of business 11 September 2023 or otherwise that their matter may be dismissed, and a decision published to this effect without further notice.

2. To date, the Applicant has not provided any further correspondence to the Commission.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.

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. As the Applicant has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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