Ingrid Grosz v L R Trading Pty Ltd Summary

[2024] FWC 984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ingrid Grosz
v

L R Trading Pty Ltd

(U2024/2467)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 APRIL 2024

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

On 5 March 2024, Ms Ingrid Grosz 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 Grosz advised in the Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with L R Trading Pty Ltd (the Respondent) on 25 November 2023 and that her dismissal took effect on 2 March 2024.

On 15 March 2024, the Commission attempted to contact the Ms Grosz on her nominated telephone number. A voicemail message was left requesting that Ms Grosz contact the Commission and advising that based on the information in her Form F2 she may not have served the minimum employment period. Later that day the Commission emailed correspondence to Ms Grosz’s nominated email address advising her that, on the basis of the information provided in her Form F2, she may not have served the minimum employment period. The correspondence directed Ms Grosz 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 Grosz’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 2 April 2024 the Commission attempted to contact Ms Grosz on her nominated telephone number. However, Ms Grosz could not be reached. A voicemail message was left requesting that she urgently contact the Commission as the information in her application indicated that she may not have served the minimum employment period. The voicemail also advised that her matter was at risk of being dismissed if no contact was made. To date Ms Grosz 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. 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 prospects of success.

As the material before the Commission does not indicate that Mr Grosz 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] PR773531.

Printed by authority of the Commonwealth Government Printer

Ingrid Grosz filed an application for relief from unfair dismissal against L R Trading Pty Ltd with the Fair Work Commission, claiming she was dismissed without cause on 2 March 2024. She had commenced her employment with the company on 25 November 2023. The Commission attempted to contact Ms Grosz on multiple occasions to request documentation that would demonstrate she had completed the minimum employment period of six months. As Ms Grosz did not respond, the Commission dismissed her application under s.587(1)(c) of the Fair Work Act 2009, on the basis that the application had no reasonable prospect of success. This was because the material before the Commission did not indicate that she had completed the required minimum employment period.

The legal issue that the Deputy President had to consider was whether Ms Grosz had completed the minimum employment period required by the Fair Work Act 2009 to be eligible for protection from unfair dismissal. Section 383 of the Fair Work Act 2009 specifies that the minimum employment period is six months if the employer is not a small business employer. As L R Trading Pty Ltd is not a small business employer, Ms Grosz had to have been employed for six months by 2 March 2024 to be eligible for protection. Given that she started working on 25 November 2023, the Deputy President was satisfied that she had not completed the required minimum employment period, and therefore her application had no reasonable prospect of success. This conclusion was reinforced by the lack of response from Ms Grosz to the Commission's requests for documentation.

The Deputy President dismissed Ms Grosz's application for relief from unfair dismissal under s.587(1)(c) of the Fair Work Act 2009. The dismissal was made on the basis that the application had no reasonable prospects of success, as there was insufficient evidence to demonstrate that Ms Grosz had completed the required minimum employment period. The decision was made without prejudice, allowing Ms Grosz the opportunity to re-file her application once she had completed the minimum employment period. An order was issued to this effect.

Ingrid Grosz v L R Trading Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established