Krystal Riggall v W.V.W. Holdings Pty. Ltd

[2023] FWC 3117

[2023] FWC 3117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Krystal Riggall
v

W.V.W. Holdings Pty. Ltd.

(U2023/10467)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 NOVEMBER 2023

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

1. On 25 October 2023, Ms Krystal Riggall (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. Ms Riggall advised in her Form F2–Unfair Dismissal Application (Form F2) that she commenced employment with W.V.W. Holdings Pty. Ltd. (Respondent) on 6 June 2023 and that her dismissal took effect on 24 October 2023.

1. On 30 October 2023, the Commission attempted to contact Ms Riggall on her nominated telephone number. A voicemail message was left advising Ms Riggall that she had not served the minimum employment period and requesting that she contact the Commission. Later that day the Commission emailed correspondence to Ms Riggall’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 Riggall 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 her application may be dismissed without further notice.

1. On 16 November 2023, as the required documentation was not received, the Commission attempted to contact Ms Riggall on her nominated telephone number. However, Ms Riggall could not be reached. A voicemail message was left requesting that Ms Riggall call the Commission back by close business on 16 November 2023, otherwise her matter would be at risk of dismissal. To date Ms Riggall 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. 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 material before the Commission indicates the Applicant has not completed the required minimum employment period under the FW Act, I am satisfied the 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 with this decision.

DEPUTY PRESIDENT

[1] PR768711.

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