Gaya Mirza Gurumurothy Abdullah v Nerissa Jayasingha

[2024] FWC 1226

[2024] FWC 1226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gaya Mirza Gurumurothy Abdullah
v

Nerissa Jayasingha

(U2024/2559)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2024

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

1. On 7 March 2024, Ms Gaya Mirza Gurumurothy Abdullah, made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Act).

1. Ms Abdullah advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Nerissa Jayasingha on 17 January 2024 and that her dismissal took effect on 18 February 2024.

1. On 11 March 2024, the Commission attempted to contact Ms Abdullah on her nominated telephone number. The call was not answered and there was not facility to leave a voicemail. Later that day the Commission emailed correspondence to Ms Abdullah’s nominated email address advising that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Abdullah 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 her application may be dismissed without further notice. An SMS notification was also sent to Ms Abdullah’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, on 28 March 2024, the Commission attempted to contact Ms Abdullah on her nominated telephone number. Ms Abdullah advised that she could not hear the Commission staff member and the call ended. A second call attempt was made which was not answered.  A voicemail was left requesting that Ms Abdullah contact the Commission. To date Ms Abdullah has not replied to the Commission’s correspondence.

1. On 12 April 2024, the Commission made a final attempt to contact Ms Abdullah on her nominated telephone number. The call was not answered and a voicemail message was left requesting that Ms Abdullah urgently contact the Commission, as his application was at risk of being dismissed. To date Ms Abdullah has not made further contact with 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. 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 prospects of success.

1. 
   As the material before the Commission does not indicate that Ms Abdullah has completed the required minimum employment period under the FW Act, I am satisfied the 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 with this decision.

DEPUTY PRESIDENT

[1] PR774806.

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