Katelin Marie Picton v Coco & Blush Co Pty Ltd

[2022] FWC 93

[2022] FWC 93

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Katelin Marie Picton
v

Coco & Blush Co Pty Ltd

(U2021/11845)

COMMISSIONER BISSETT MELBOURNE, 20 JANUARY 2022

Application for an unfair dismissal remedy

1. On 17 December 2021 Miss Katelin Marie Picton 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). Miss Picton alleged she was unfairly dismissed by Coco & Blush Co Pty Ltd.

1. Miss Picton advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Coco & Blush Co Pty Ltd on 11 December 2021 and that she was notified of their dismissal on 17 December 2021.

1. On 20 December 2021 the Commission attempted to contact Miss Picton on her nominated telephone number. A voicemail message was left requesting that Miss Picton contact the Commission to discuss the application.

1. Later that day, the Commission emailed correspondence to Miss Picton’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Picton to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss Picton 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 12 January 2022 the Commission attempted to contact Miss Picton on her nominated telephone number. However, Miss Picton could not be reached. A voicemail message was left advising that based on the dates provided she appeared to not meet the minimum employment period required for a valid application and requesting she return contact to discuss.

1. To date Miss Picton 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. 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 Miss Picton 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

[1] PR737609.

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<PR737608>