Kerry Clift v SYC

[2023] FWC 1809

[2023] FWC 1809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kerry Clift
v

SYC

(U2023/4705)

COMMISSIONER BISSETT MELBOURNE, 25 JULY 2023

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

1. On 30 May 2023 Kerry Clift (the Applicant) 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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with SYC on 5 December 2022 and that their dismissal took effect on 9 May 2023.

1. On 13 June 2023, the Commission contacted the Applicant on their nominated telephone number to discuss the minimum employment issue. The Applicant requested that all communication going forward occur by email as opposed to telephone as the Applicant advised that they have hearing difficulties.

1. Later that day, the Commission sent correspondence to the Applicant’s nominated email address advising them that based on the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice. The Commission also emailed the Applicant general information about the general protections application involving dismissal (Form F8).

1. The Applicant replied to the Commission on 13 June 2023 with allegations against the Respondent and the reason they believed they had been dismissed. 

1. In reply to the Applicant’s email, on 28 June 2023 the Commission emailed correspondence to the Applicant noting that since the minimum employment period has not been met, the Applicant may not be eligible to lodge an unfair dismissal application with the Fair Work Commission. This email requested that they advise the Commission by close of business 28 June 2023 as to how they wished to proceed with the matter.

1. Later that day, the Applicant replied to the above correspondence as follows:

   Forget it , absolutely no help at all

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 that the Applicant 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 the Applicant 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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