Iowna Kessler v Sky Lodge Frankston

[2023] FWC 3017

[2023] FWC 3017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Iowna Kessler
v

Sky Lodge Frankston

(U2023/10309)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 NOVEMBER 2023

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

1. On 20 October 2023, Ms Iowna Kessler (Applicant) 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 Kessler advised in her Form F2 – Unfair Dismissal Application (Form F2) that she did not know the exact date she commenced employment with Sky Lodge Frankston (Respondent) and that her dismissal took effect on 20 October 2023. Ms Kessler attached to her application a letter from the Respondent with the subject line “Minimum Employment Letter”, which advised Ms Kessler that her “employment is terminated as of the 19/10/2023.”

1. On 25 October 2023, the Commission attempted to contact Ms Kessler on her nominated telephone number. A voicemail message was left requesting that Ms Kessler contact the Commission regarding her not having served the minimum employment period. Later that day, the Commission emailed correspondence to Ms Kessler’s nominated email address advising her that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Kessler 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 Kessler requesting that she contact the Commission.

1. On 10 November 2023, as the required documentation was not received, the Commission attempted to contact Ms Kessler on her nominated telephone number. However, Ms Kessler could not be reached. A voicemail message was left requesting that Ms Kessler call the Commission back by close of business 10 November 2023, otherwise her application may be dismissed without further notice. To date Ms Kessler 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. 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 the material before the Commission does not establish that Ms Kessler 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]  PR768394.

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