Kayla Marie Van Balen v Melissa

[2023] FWC 1589

[2023] FWC 1589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kayla Marie Van Balen
v

Melissa

(U2023/4681)

COMMISSIONER BISSETT MELBOURNE, 5 JULY 2023

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

1. On 29 May 2023, Ms Kayla Marie Van Balen 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 Van Balen advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Melissa on 17 February 2023 and that her dismissal took effect on 29 May 2023, meaning the duration of her employment was less than 6 months.

1. On 1 June 2023, the Commission attempted to contact Ms Van Balen on her nominated telephone number. A voicemail message was left which raised the concern that she had not served the minimum employment period and requested that she contact the Commission.

1. Later that day the Commission emailed correspondence to Ms Van Balen’s nominated email address advising Ms Van Balen that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Van Balen to file any documents or other 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. Later that day, an SMS notification was sent to Ms Van Balen’s nominated telephone number requesting that she contact the Commission.

1. On 2 June 2023, the Commission sent an SMS to Ms Van Balen’s nominated telephone number advising that there was a problem with her matter and requested she contact the Commission.

1. On the 5 June 2023 Ms Van Balen contacted the Commission by telephone regarding her application. The Commission advised Ms Van Balen on the basis of the information provided in the Form F2, she had not served the minimum employment period. The Commission directed Ms Van Balen to file any documents or other evidence to support her claim that she had served the required minimum employment period. The Commission also warned that if she did not contact the Commission by the 15 June 2023 the application may be dismissed without further notice.

1. As the required documentation was not received, on 21 June 2023 the Commission attempted to contact Ms Van Balen on her nominated telephone number. However, Ms Van Balen could not be reached. A voicemail message was left advising Ms Van Balen that she had not met the minimum employment period, to contact the Commission by the 24 June 2023 and that if she did not contact the Commission, the application may be dismissed without further notice.

1. To date Ms Van Balen 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. I am satisfied Ms Van Balen has not completed the required 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 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.

1. As Ms Van Balen has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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