Holly Kezia Weir v Woodleigh Estate Gino Poletti Racing

[2023] FWC 1626

[2023] FWC 1626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Holly Kezia Weir
v

Woodleigh Estate Gino Poletti Racing

(U2023/4448)

COMMISSIONER BISSETT MELBOURNE, 6 JULY 2023

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

1. On 21 May 2023 Miss Holly Kezia Weir 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 Weir advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Woodleigh Estate Gino Poletti Racing in February 2022 and that her dismissal took effect in April 2022.

1. On 26 May 2023, the Commission emailed correspondence to Miss Weir’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 Miss Weir 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 Miss Weir’s nominated telephone number requesting that she contact the Commission.

1. On 14 June 2023, the Commission attempted to contact Miss Weir on her nominated telephone number. However, Miss Weir could not be reached. A voicemail message was left requesting Miss Weir call the Commission back in relation to that her application shows that she had not served the minimum employment period.

1. As the required documentation was not received, on 23 June 2023 the Commission attempted to contact Miss Weir on her nominated telephone number. However, Miss Weir could not be reached. A voicemail message was left requesting that Miss Weir call the Commission back to discuss the minimum employment issue by close of business 23 June 2023 and warned that if she does not contact the Commission, her matter may be dismissed without further notice.

1. To date Miss Weir 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 Weir 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 Weir 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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