Kayla Gidley v Griffin National Real Estate

[2020] FWC 6381

[2020] FWC 6381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kayla Gidley
v
Griffin National Real Estate
(U2020/14652)

COMMISSIONER BISSETT MELBOURNE, 27 NOVEMBER 2020

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

[1] On 9 November 2020, Ms Kayla Gidley made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Gidley advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Griffin National Real Estate on 6 October 2020 and that her dismissal took effect on 26 October 2020.

[3] On 10 November 2020, the Commission attempted to contact Ms Gidley on her nominated telephone number. A voicemail message was left explaining that she does not appear to meet the minimum employment period required by the FW Act and requesting she contact the Commission via telephone if she wanted to discontinue the application or discuss the matter further.

[4] Later that day, the Commission emailed correspondence to Ms Gidley’s nominated email address advising Ms Gidley that on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Gidley to file any documents and/or evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Gidley did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] On 10 November 2020, Ms Gidley contacted the Commission via email. She claimed to have contacted the Commission on the day that she was terminated and had been advised that she was entitled to one week’s wages or one week’s notice before her termination. She stated that the individual she spoke to suggested she contact her employer and advise them that they have a week to pay the funds into her account or she would file a claim.

[6] As the required documentation was not received, on 24 November 2020 the Commission attempted to contact Ms Gidley via her nominated telephone number. However, Ms Gidley could not be reached. A further voicemail message was left explaining that she does not appear to meet the minimum employment period and that the matter was at risk of being dismissed. The Commission further explained that based on the comments in her application it appears as if she spoke to the Fair Work Ombudsman previously in relation to her entitlements upon termination.

[7] The Commission clarified that the Fair Work Ombudsman can assist with unpaid wages and entitlements and that she may wish to contact them for assistance. The Commission encouraged Ms Gidley to return the call if she wanted to discuss the matter further or discontinue her application.

[8] Despite initially responding to the Commission’s correspondence, Ms Gidley has not provided evidence as directed to demonstrate she meets the minimum employment period.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Ms Gidley has not completed the required minimum employment period and her application has no reasonable prospects of success.

[11] 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.

[12] 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 prospects of success.

[13] Having regard to the circumstances of this matter I am satisfied that as Ms Gidley has not completed the required minimum employment period under the FW Act and 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

<PR724934>