Jemma Besant v Kristy Pitman

[2022] FWC 731

[2022] FWC 731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jemma Besant
v

Kristy Pitman

(U2022/3147)

COMMISSIONER BISSETT MELBOURNE, 1 APRIL 2022

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

1. On 15 March 2022 Ms Jemma Besant 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 Besant advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Kristy Pitman on 7 February 2022 and that her dismissal took effect on 24 February 2022.

1. On 15 March 2022, the Commission attempted to contact Ms Besant via telephone. A voicemail message was left requesting Ms Besant to contact the Commission. The message also advised Ms Besant that she may not have served the minimum employment period, but that she was still within the 21 calendar-day lodgement period to consider lodging an alternative application if appropriate.

1. Later that day, the Commission emailed correspondence to Ms Besant advising that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Besant to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Besant 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 29 March 2022 the Commission attempted to contact Ms Besant via telephone. However, Besant could not be reached. A voicemail message was left requesting Ms Besant to contact the Commission to confirm if she wanted to pursue this matter.

1. To date, Besant 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 of at least the 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 that:

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. Having regard to the circumstances of this matter I am satisfied that as Besant has not completed the required minimum employment period under the FW Act, his/her 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.

COMMISSIONER

[1] PR739923.

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