Jarrah Nock v Russel Knudsen

[2023] FWC 1695

[2023] FWC 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jarrah Nock
v

Russel Knudsen

(U2023/5033)

COMMISSIONER BISSETT MELBOURNE, 13 JULY 2023

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

1. On 8 June 2023 Ms Jarrah Nock 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 Nock advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Russel Knudsen on 25 January 2023 and that her dismissal took effect on 7 June 2023.

1. On 9 June 2023, the Commission emailed correspondence to Ms Nock’s nominated email address advising Ms Nock that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Nock 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.

1. As the required documentation was not received, on 26 June 2023 the Commission attempted to contact Ms Nock on her nominated telephone number. However, Ms Nock could not be reached. A voice message was left requesting that she contact the Commission as the information provided in her application suggested that she may not have met the minimum employment period.

1. On 5 July 2023, the Commission attempted to contact Ms Nock again on her nominated telephone number. However, Ms Nock could not be reached. A voice message was left requesting that she contact the Commission as the information provided in her application suggested that she may not have met the minimum employment period.

1. On 6 July 2023, the Commission tried to contact Ms Nock again on her nominated telephone number. However, Ms Nock could not be reached. A voice message was left requesting that she contact the Commission as the information provided in her application suggested that she may not have met the minimum employment period.

1. To date Ms Nock 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 Ms Nock 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 Ms Nock 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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