Jenna Anstis v Rex Gorell Family Group Pty Ltd

[2024] FWC 1642

[2024] FWC 1642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jenna Anstis
v

Rex Gorell Family Group Pty Ltd

(U2024/4840)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 AUGUST 2024

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

1. Ms Jenna Anstis applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 26 April 2024.

1. Ms Anstis stated in her unfair dismissal application (Form F2) that her employment with Rex Gorell Family Group Pty Ltd (Respondent) commenced on 1 November 2023 and her dismissal notification date and effective dismissal date both coincided on 24 April 2024.

1. On 3 May 2024, the Commission attempted to contact Ms Anstis on her nominated telephone number. A voicemail message was left requesting Ms Anstis to urgently contact the Commission because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act.

1. Later that day, the Commission emailed correspondence to Ms Anstis’s nominated email address informing her that she had not served the applicable minimum employment period based on the information she had provided in her Form F2. The correspondence directed Ms Anstis to file any documents to support her claim that she had worked for the Respondent for the applicable minimum employment period under the Act. That correspondence also warned Ms Anstis that if she did not contact the Commission within 14 days, her application might be dismissed without further notice. A SMS notification was sent to Ms Anstis’ nominated mobile number requesting her to contact the Commission.

1. The Commission attempted to contact Ms Anstis on her nominated telephone number on 9 May 2024. Ms Anstis could not be reached. A voicemail message was left requesting that she urgently contact the Commission to confirm her dates of employment and informing her that her matter might otherwise be dismissed.

1. On 13 May 2024, the Commission received an email from Ms Anstis, who filed her first and last payslips issued by the Respondent for pay periods between 2 November 2023 to 8 November 2023 and 25 April 2024 to 1 May 2024 respectively.

1. The Commission did however not receive any documents in support of Ms Anstis’ claim that she had served the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 3 May 2024.

2. The Commission made a final attempt to contact Ms Anstis on her nominated telephone number on 27 May 2024. The call was not answered, and a voicemail was left requesting Ms Anstis to urgently contact the Commission in relation to her application and informing her that her application was at risk of being dismissed if no contact was received by midday on 28 May 2024.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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 prospects of success.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. To be protected from unfair dismissal, a person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer. The material before the Commission indicates that Ms Anstis has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Jenna Anstis’ unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR776319.

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