Jessica Doyle v The Trustee for MMM Trust
[2023] FWC 2203
•1 SEPTEMBER 2023
| [2023] FWC 2203 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessica Doyle
v
The Trustee for MMM Trust
(U2023/6753)
| COMMISSIONER BISSETT | MELBOURNE, 1 SEPTEMBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative
On 24 July 2023, Ms Jessica Doyle (the Applicant) 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).
Ms Doyle advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee for MMM Trust (the Respondent) on 19 February 2023 and was dismissed on 30 June 2023.
On 26 July 2023, the Commission attempted to contact Ms Doyle on her nominated telephone number. Ms Doyle could not be reached. A voicemail message was left requesting that Ms Doyle call back the Commission with regards to the minimum employment period.
Later that day, the Commission emailed correspondence to Ms Doyle’s nominated email address advising Ms Doyle that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. This correspondence directed Ms Doyle to file any documents or other evidence to support her claim that she had served the required minimum employment period. This correspondence also warned that, if she did not contact the Commission within 14 days, the application may be dismissed without further notice.
On 7 August 2023, the Commission contacted Ms Doyle to discuss the correspondence sent on 26 July 2023. Ms Doyle advised that she had not been able to read her emails as her mobile telephone was broken. Ms Doyle advised she would now read the correspondence, and that she would like to proceed with her application. Ms Doyle was then informed that her application would be referred to a Member of the Commission.
Later that day, Ms Doyle sent an email to the Commission providing copies of several payslips. These payslips indicated that Ms Doyle received remuneration from the Respondent from the pay period of 20 February 2023 to 2 July 2023.
The matter was subsequently referred to me. On 7 August 2023, I directed that correspondence be sent to Ms Doyle. This correspondence advised Ms Doyle it was my preliminary view that, based on the information provided to the Commission, she had not been engaged for the minimum employment period and her application therefore had no reasonable prospect of success. Ms Doyle was required to file submissions by 16 August 2023 as to why I should not dismiss her application.
To date, Ms Doyle has not provided any further correspondence to the Commission.
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 Doyle has not completed the required minimum employment period.
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.
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.
As Ms Doyle 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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