Georgia Smits v Dr Fiona Lee

[2023] FWC 22

[2023] FWC 22

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Georgia Smits
v

Dr Fiona Lee

(U2022/11494)

COMMISSIONER BISSETT MELBOURNE, 4 JANUARY 2023

Application for an unfair dismissal remedy

1. On 2 December 2022 Miss Georgia Smits 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. Miss Smits advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Dr Fiona Lee on 20 June 2022 and she was notified of her dismissal on 2 December 2022.

1. On 5 December 2022 the Commission attempted to contact Miss Smits on her nominated telephone number. The call was not answered and a Voicemail could not be left. Later that day the Commission emailed correspondence to Miss Smits’s nominated email address advising Miss Smits that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Smits to file any documents/evidence to support a 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 22 December 2022, the Commission attempted to contact Miss Smits on her nominated telephone number. The Commission was again unable to contact Miss Smits as the phone was not answered.

1. To date Miss Smits 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. I am satisfied Miss Smits 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 Miss Smits has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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