Isabelle James v Ngwala Willumbong Aboriginal Corporation

[2023] FWC 3394

[2023] FWC 3394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Isabelle James
v

Ngwala Willumbong Aboriginal Corporation

(U2023/10744)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 DECEMBER 2023

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

1. On 2 November 2023, Ms Isabelle James (the 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 James advised in her Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Ngwala Willumbong Aboriginal Corporation (the Respondent) on 15 May 2023 and that her dismissal took effect on 13 October 2023.

1. On 19 November 2023, the Commission emailed correspondence to Ms James’ 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 Ms James 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. Later that day, Ms James made an application under s.365 of the Act, alleging that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. On 20 November 2023, the Commission attempted to contact Ms James on her nominated telephone number, regarding her unfair dismissal application. A voicemail message was left advising Ms James that she had not served the minimum employment period and requesting that she contact the Commission.

1. On 4 December 2023, as the required documentation was not received, the Commission attempted to contact Ms James on her nominated telephone number. However, Ms James could not be reached. A voicemail message was left requesting that she urgently contact the Commission in relation to her application. The voicemail also advised her that as the dates on her application indicated that the minimum employment period had not been served, her matter was at risk of being dismissed. To date Ms James 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 indicates Ms James has not 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] PR769555.

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<PR769554>