Lauren Ristov v Misha Collection Pty Ltd

[2023] FWC 3080

[2023] FWC 3080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lauren Ristov
v

Misha Collection Pty Ltd

(U2023/9686)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 5 October 2023, Ms Lauren Ristov (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 Ristov advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Misha Collection Pty Ltd (Respondent) on 11 April 2023 and that her dismissal took effect on 3 October 2023.

1. On 10 October 2023, the Commission attempted to contact Ms Ristov on her nominated telephone number. However, Ms Ristov could not be reached. A voicemail message was left advising her that she had not served the minimum employment period based on the dates provided in her Form F2. Later that day, the Commission emailed correspondence to Ms Ristov’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 Rostov 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 18 October 2023, Ms Ristov emailed correspondence to the Commission attaching what she called a “resignation letter” (the letter). However,  the letter, dated 4 October 2023, contained the subject line “Notice of Termination of Employment” and affirmed Ms Ristov’s last date of employment as 3 October 2023. On 27 October 2023, as the required documentation was not received, the Commission contacted Ms Ristov on her nominated telephone number. Ms Ristov advised that she had worked with the Respondent for seven months; Ms Ristov was advised that the dates provided in her Form F2 did not reflect this. Ms Ristov was requested to recheck her employment contract and provide the correct dates to the Commission. Ms Ristov was also warned that if she did not contact the Commission with the required documentation her matter may be dismissed, and a decision published on the Commission's website. Ms Ristov has not made contact with the Commission since.

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 Ms Ristov 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] PR768581.

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<PR768580>