Jorja Carney v Gidgee Healing
[2023] FWC 71
•11 JANUARY 2023
| [2023] FWC 71 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jorja Carney
v
Gidgee Healing
(U2022/11913)
| COMMISSIONER BISSETT | MELBOURNE, 11 JANUARY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 16 December 2022 Ms Jorja Carney 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 Carney advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Gidgee Healing on 8 June 2022 and she were notified of her dismissal on 25 November 2022.
On 18 December 2022 the Commission emailed correspondence to Ms Carney’s nominated email advising Ms. Carney that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Carney to file any documents or evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice.
On 19 December 2022 the Commission attempted to contact Ms. Carney on her nominated telephone number. A voicemail message was left requesting a return call.
As the required documentation was not received, on 6 January 2023 the Commission attempted to contact Ms. Carney on her nominated telephone number. However, Ms Carney could not be reached. A voicemail message was left requesting that she return the call to the Commission. An attempt was also made to contact Ms Carney’s representative. However, the phone call went unanswered and no voice message was able to be left.
To date Ms. Carney has not replied to the Commission’s correspondence.
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. Carney 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 Carney has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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