Leonie Rabekah Harvey v Harbour Guidance Pty Ltd (Jeanswest)

[2021] FWC 6642

[2021] FWC 6642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leonie Rabekah Harvey
v
Harbour Guidance Pty Ltd (Jeanswest)
(U2021/10602)

COMMISSIONER BISSETT MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 20 November 2021 Mrs Leonie Rabekah Harvey 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). Mrs Harvey alleged she was unfairly dismissed by Harbour Guidance Pty Ltd (Jeanswest) (the Respondent) 28 October 2021.

[2] Mrs Harvey advised in the Form F2 Unfair Dismissal Application (Form F2) that she had worked several periods of employment with the Respondents and that she had commenced her most recent period of employment with Harbour Guidance Pty Ltd (Jeanswest) in September 2021 and that her dismissal took effect on 29October 2021.

[3] On 22 November 2021, the Commission attempted to contact Mrs Harvey on her nominated telephone number. A voicemail message was left requesting clarification of the employment dates and advising that Mrs Harvey may not have served the minimum employment period. The number provided for Mrs Harvey’s representative was the same number provided for Mrs Harvey, thus a separate call to her representative could not be made.

[4] Later that day, the Commission emailed correspondence to Mrs Harvey’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 Mrs Harvey to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Mrs Harvey did not contact the Commission within 14 days, the application may be dismissed without further notice. A copy of this correspondence was also emailed to Mrs Harvey’s representative.

[5] As the required documentation was not received, on 3 December 2021 the Commission attempted to contact Mrs Harvey via her nominated telephone number. However, Mrs Harvey could not be reached. A voicemail message was left requesting she call back to provide the information and advising that if the information was not provided the matter may be dismissed.

[6] To date, Mrs Harvey 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] 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.

[9] 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.

[10] Having regard to the circumstances of this matter I am satisfied that as Mrs Harvey 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 with this decision.

COMMISSIONER

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