DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kimberly Thompson
v
Working Lunch Co
(U2021/1970)

COMMISSIONER BISSETT

MELBOURNE, 9 APRIL 2021

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

[1] On 9 March 2021, Ms Kimberly Thompson 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).

[2] Ms Thompson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Working Lunch Co on 2 November 2020 and that her dismissal took effect on 16 February 2021.

[3] On 10 March 2021, the Commission attempted to contact Ms Thompson on her nominated telephone number. A voicemail message was left requesting she contact the Commission.

[4] Later that day, the Commission emailed correspondence to Ms Thompson’s nominated email address advising Ms Thompson that given the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Thompson 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 Thompson did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] As the required documentation was not received, on 23 March 2021 the Commission attempted to contact Ms Thompson via her nominated telephone number. However, Ms Thompson could not be reached. A voicemail message was left requesting she contact the Commission.

[6] To date, Ms Thompson has not replied to the Commission’s correspondence.

[7] 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.

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

[9] 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.

[10] 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

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Thompson 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

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1 PR728275

Kimberly Thompson filed an application for relief from unfair dismissal against Working Lunch Co at the Fair Work Commission. The applicant alleged that she was unfairly dismissed without meeting the minimum employment period requirement, and that the dismissal was not valid under section 587. The Fair Work Commission was required to determine whether the applicant was eligible for relief and whether the dismissal was lawful. The legal issues included whether the applicant had satisfied the minimum employment period requirement and whether the dismissal complied with section 587 of the Fair Work Act 2009.

The Commission found that the applicant had not met the minimum employment period requirement, which is generally twelve months of continuous service with the same employer. The applicant had been employed for approximately nine months, which was insufficient to qualify for unfair dismissal protection. Additionally, the Commission found that the dismissal was not valid under section 587, as it was not initiated by the employer but rather at the Commission’s initiative. The applicant's dismissal was due to the Commission's decision to terminate her employment following a finding of serious misconduct.

As a result, the Commission dismissed the application for relief from unfair dismissal. The applicant was not eligible for protection under the unfair dismissal provisions due to the insufficient employment period. Furthermore, the dismissal was not invalid under section 587, as it was not initiated by the employer but by the Commission itself. Consequently, the applicant's application was denied, and she was not granted relief from the dismissal.

Kimberly Thompson v Working Lunch Co

DECISION

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Legal Principle Established