Helena Vaughan v Craig & Rhodes Pty Ltd

[2023] FWC 1063

[2023] FWC 1063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Helena Vaughan
v

Craig & Rhodes Pty Ltd

(U2023/2481)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 5 MAY 2023

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

1. On 24 March 2023 Ms Helena Vaughan 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. Ms Vaughan advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Craig & Rhodes Pty Ltd on 28 September 2022 and that her dismissal took effect on 22 March 2023.

1. On 30 March 2023 the Commission attempted to contact Ms Vaughan on her nominated telephone number. A voicemail message was left advising Ms Vaughan that the dates of employment supplied in the Form F2 suggest she had not served the minimum employment period.

1. Later that day the Commission emailed correspondence to Ms Vaughan’s nominated email address advising that based on the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Vaughan 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 Vaughan’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, on 17 April 2023 the Commission attempted to contact Ms Vaughan on her nominated telephone number. However, Ms Vaughan could not be reached. A voicemail message was left requesting Ms Vaughan contact the Commission by close of business on 18 April 2023 as her matter may be dismissed.

1. To date Ms Vaughan 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 Ms Vaughan 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 Ms Vaughan 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.

DEPUTY PRESIDENT

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