Jasmin Akter v The Trustee for the Leppington Trust

[2024] FWC 1624

[2024] FWC 1624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jasmin Akter
v

The Trustee For The Leppington Trust

(U2024/5091)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 JULY 2024

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

1. On 9 May 2024, Mrs Jasmin Akter made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. Mrs Akter advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee For The Leppington Trust (the Respondent) on 23 October 2023 and that her dismissal took effect on 12 April 2024.

1. On 9 May 2024, the Commission contacted Mrs Akter on her nominated telephone number, her nominated representative answered. The Commission advised Mrs Akter’s representative that the Applicant might not have served the minimum employment period. It was explained that the Minimum Employment Period is an eligibility requirement for an Unfair Dismissal Application. Mrs Akter’s representative requested time to confirm employment dates.

1. On 16 May 2024, the Commission emailed correspondence to Mrs Akter’s nominated email address advising that, on the basis of the information provided in the Form F2, Mrs Akter had not served the minimum employment period. The correspondence directed Mrs Akter to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Mrs Akter did not contact the Commission within 14 days, her application may be dismissed without further notice. On the same day, a SMS notification was also sent to Mrs Akter’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, the Commission attempted to contact Mrs Akter on her nominated telephone number on 29 May 2024. Mrs Akter could not be reached. A voicemail message was left requesting that she make contact with the Commission in relation to the minimum employment period, as her application was at risk of being dismissed.

1. To date Mrs Akter 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 Mrs Akter 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 the material before the Commission indicates Mrs Akter has not completed the required minimum employment period under the Act, I am persuaded 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] PR776278.

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