Karen Scully v Ararat Retirement Village Inc T/A Gorrinn Village

[2022] FWC 1181

[2022] FWC 1181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Karen Scully
v

Ararat Retirement Village Inc T/A Gorrinn Village

(U2022/3584)

COMMISSIONER BISSETT MELBOURNE, 18 MAY 2022

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

1. On 25 March 2022, Ms Karen Scully 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 Scully advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Ararat Retirement Village Inc T/A Gorrinn Village on 06 December 2021 and that her dismissal took effect on 24 March 2022.

1. On 28 March 2022, the Commission attempted to contact Ms Scully on her nominated telephone number. A voicemail message was left requesting she make contact with the Commission as it appears her employment dates fall short of the minimum employment period. Ms Scully contacted the Commission by telephone, where there was an attempt by the Commission to explain the minimum employment period requirements. In that telephone call the Commission confirmed that an email explaining the minimum employment period requirements would be sent to Ms Scully.

1. Ms Scully shortly thereafter contacted the Commission in response to the voicemail that was left for her. An attempt was made by the Commission to explain to her and her nominated representative the minimum employment period requirements. Ms Scully’s representative was reluctant to accept this information and it was confirmed that this would also be sent in writing to which they agreed.

1. Later that day, the Commission emailed correspondence to Ms Scully’s nominated email address advising Ms Scully that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Scully to file any documents/evidence to support her claim that they had served the required minimum employment period. That correspondence also warned that if Ms Scully 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 27 April 2022 the Commission attempted to contact Ms Scully via their nominated telephone number. However, she could not be reached.

1. To date, Ms Scully 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 Scully 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 Scully 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

Printed by authority of the Commonwealth Government Printer

<PR741646>