Karen Henderson v Emerald Coaches

[2022] FWC 1179

[2022] FWC 1179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Karen Henderson
v

Emerald Coaches

(U2022/3633)

COMMISSIONER BISSETT MELBOURNE, 19 MAY 2022

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

1. On 27 March 2022, Karen Henderson 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 Henderson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Emerald Coaches on 14 February and she was notified of her dismissal on 8 March 2022. Ms Henderson did not provide a year for the date her employment commenced, however documents submitted with the application suggest the employment began 14 February 2022.

1. On 28 March 2022, the Commission attempted to contact Ms Henderson on her nominated telephone number. A voicemail message was left requesting Ms Henderson contact the Commission to discuss the application in relation to the required Minimum Employment Period.

1. Later that day, the Commission emailed correspondence to Ms Henderson’s nominated email address advising her that on the basis of the information provided in the Form F2, she may not have served the minimum employment period. The correspondence directed her to confirm the date employment commenced, including the year, to the Commission within 14 days. The Correspondence also detailed the requirement to show that the minimum employment period had been met and make payment of the application fee for the application to proceed. That correspondence also warned that if she 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 7 April 2022 the Commission attempted to contact Ms Henderson via her nominated telephone number. However, she could not be reached. A voicemail message was left requesting that she urgently contact the Commission to provide the dates requested and advising that if no contact was made the matter was at risk of being dismissed.

1. To date, Ms Henderson 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. In the circumstances of this matter, I am satisfied Ms Henderson has not completed the required minimum employment period and her application has no reasonable prospects of success.

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 Ms Henderson 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 to this effect will be issued shortly.

COMMISSIONER

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