Francesca Adamu v Adam Barrett
[2023] FWC 860
•11 APRIL 2023
| [2023] FWC 860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Francesca Adamu
v
Adam Barrett
(U2023/1938)
| COMMISSIONER BISSETT | MELBOURNE, 11 APRIL 2023 |
Application for an unfair dismissal remedy
On 9 March 2023 Ms Francesca Adamu 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).
Ms Adamu advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Adam Barrett on 29 November 2022 and that her dismissal took effect on 26 February 2023.
On 13 March 2023, the Commission emailed correspondence to Ms Adamu’s nominated email address advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Adamu 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. An SMS notification was also sent to Ms Adamu’s nominated telephone number requesting that she contact the Commission.
As the required documentation was not received, on 30 March 2023 the Commission attempted to contact Ms Adamu on her nominated telephone number. However, she could not be reached. A voicemail message was left requesting she contact the Commission by close of business on 31 March 2023 as the information provided in the Form F2 suggested she had not served the minimum employment period. She was advised that if no correspondence was received, her matter may be dismissed by a Commission Member.
As the required documentation was not received, on 31 March 2023 the Commission attempted to contact Ms Adamu on her nominated telephone number. However, Ms Adamu could not be reached. A brief voicemail message was left requesting Ms Adamu to contact the Commission urgently. Ms Adamu’s matter number and the Commission’s contact number were quoted as references.
To date Ms Adamu has not replied to the Commission’s correspondence.
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 Ms Adamu has not completed the required minimum employment period.
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.
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.
As Ms Adamu 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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