Jessica Cruickshank v Merrimac Superior Care T/A Age Care

[2020] FWC 3922

[2020] FWC 3922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Cruickshank
v
Merrimac Superior Care T/A Age Care
(U2020/8725)

COMMISSIONER BISSETT MELBOURNE, 28 JULY 2020

Application for an unfair dismissal remedy.

[1] On 24 June 2020 Ms Jessica Cruickshank 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).

[2] Ms Cruickshank advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Merrimac Superior Care T/A Age Care on 27 January 2020 and that her dismissal took effect on 24 June 2020.

[3] On 25 June 2020 the Commission contacted Ms Cruickshank on her nominated telephone number. The Commission advised Ms Cruickshank that she did not appear to meet the minimum employment period however Ms Cruickshank said that wanted to proceed with her application.

[4] Later that day, the Commission emailed correspondence to Ms Cruickshank’s nominated email address advising Ms Cruickshank that on the basis of the information provided in the Form F2 she had not served the minimum employment period. The correspondence directed Ms Cruickshank 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 Cruickshank did not provide this information within 14 days, her application may be dismissed without further notice.

[5] As the required documentation was not received, on 13 July 2020 the Commission attempted to contact Ms Cruickshank on her nominated telephone number. Ms Cruickshank could not be reached. A voicemail message was left advising that the Commission was following up on correspondence sent on 25 June 2020 as she did not appear to meet the minimum employment period. The Commission requested she return the call or provide any relevant information about her employment period. The voicemail message also stated that Ms Cruickshank may discontinue the application but that the application may be dismissed if the Commission did not hear from her.

[6] On 14 July 2020 follow up correspondence was sent by email to Ms Cruickshank’s nominated email address. The correspondence advised Ms Cruickshank that while she had advised the Commission she wished to proceed with her application, she had not provided any evidence that she had worked the minimum employment period such that she may be eligible to have her application heard. The correspondence further advised that the matter had now been referred to Commissioner Bissett, National Practice Leader for unfair dismissals. Ms Cruickshank was informed that she was being given a final opportunity to provide any evidence. She was directed to provide any evidence by 4.00pm on Tuesday, 21 July 2020.

[7] To date, Ms Cruickshank has not replied to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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 prospects of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Cruickshank has not completed the required minimum employment period under the FW Act, 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 shortly.

COMMISSIONER

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