Jacqueline Sills Marriott v The Trustee for Apex Gates Trust

[2024] FWC 990

[2024] FWC 990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacqueline Sills Marriott
v

The Trustee For Apex Gates Trust

(U2024/1895)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

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

1. On 21 February 2024, Ms Jacqueline Sills Marriott 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 Marriott advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee for Apex Gates Trust (the Respondent) on 13 November 2023 and that her dismissal took effect on 7 February 2024.

1. On 22 February 2024, the Commission emailed correspondence to Ms Marriott’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 Marriott 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 Ms Marriott did not contact the Commission within 14 days, her application may be dismissed without further notice.

1. On the 14 March 2024, the Commission contacted Ms Marriott on her nominated telephone number. The Commission advised Ms Marriott that she had not served the minimum employment period. Ms Marriott requested the correspondence issued by the Commission on 22 February 2024 to again be sent to her and advised that she would review the correspondence before responding. Later that day, the Commission resent a copy of the requested correspondence to Ms Marriott’s nominated email address.

1. As the required documentation was not received, on 21 March 2024 the Commission attempted to contact Ms Marriott on her nominated telephone number. However, Ms Marriott could not be reached. A voicemail message was left requesting that Ms Marriott contact the Commission by close of business, otherwise, her application may be dismissed without further notice.To date, Ms Marriott has not made further contact with the Commission.

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 Marriott 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] PR773544.

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<PR773543>