Emmalee Millar v Black Brewing

[2022] FWC 464

[2022] FWC 464

The attached Decision replaces the Decision previously issued with the above code earlier today. The Decision is corrected by:

1. Deleting the title of the Act in the preamble and inserting “Fair Work Act 2009”.

1. Amending the paragraph numbering on pages 2 and 3 of the Decision.

Lisa Powell
Associate to Commissioner Bissett

Dated: 2 March 2022

[2022] FWC 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Emmalee Millar

v

Black Brewing

(U2022/1385)

cOMMISSIONER bISSETT MELBOURNE, 2 MARCH 2022

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

1. On 1 February 2022, Ms Emmalee Millar (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 Black Brewing in September 2021 and that her dismissal took effect on 10 December 2021.

1. On 2 February 2022, the Commission telephoned the Applicant to discuss her application. The Applicant confirmed the dates in the Form F2 were correct.  The Commission explained to the Applicant that on the information provided in the Form F2 she had not served the minimum employment period. The Commission then provided the Applicant with information regarding general protections applications as well as suggesting she seek legal advice.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that on the basis of 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 they 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. On 8 February 2022, the Applicant sent email correspondence to the Commission advising that she had received a telephone call in relation to her application and wanted to know if there was someone she could talk to about this. The Commission telephoned the Applicant and explained the minimum employment period process to her. The Commission also advised the Applicant if we do not receive the requested documentation the application will be referred to a Member who may dismiss the application. The Applicant advised that she was unwell and could not continue with the conversation. The Commission advised the Applicant that we would call her again at the end of the week. For reasons that are unclear the Commission did not attempt to contact the Applicant at the end of that week.

1. On 23 February 2022 the Commission made a final attempt to contact the Applicant on her nominated telephone number to discuss the application as no documentation had been received from her. The Applicant did not answer the call. A voicemail message was left requesting that she call the Commission helpline regarding her application.

1. To date the Applicant has not provided the requested documentation.

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] PR738930

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