Kayla Simpson v Belle Joy Support

[2022] FWC 2995

[2022] FWC 2995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kayla Simpson
v

Belle Joy Support

(U2022/10062)

COMMISSIONER BISSETT MELBOURNE, 11 NOVEMBER 2022

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

1. On 14 October 2022 Ms Kayla Simpson 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 Simpson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Belle Joy Support on 18 April 2022 and that her dismissal took effect on 26 September 2022.

1. On 17 October 2022 the Commission attempted to contact Ms Simpson on her nominated telephone number. A voicemail message was left requesting Ms Simpson contact the Commission as it appeared she had not served the minimum employment period.

1. Later that day, the Commission emailed correspondence to Ms Simpson’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 Ms Simpson to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Simpson 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 2 November 2022 the Commission attempted to contact Ms Simpson via her nominated telephone number. However, Ms Simpson could not be reached. A voicemail message was left requesting Ms Simpson contact the Commission.

1. To date, Ms Simpson 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 Ms Simpson 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] PR747838

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