Lilly Spencer v Splend

[2023] FWC 165

[2023] FWC 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lilly Spencer
v

Splend

(U2022/12214)

COMMISSIONER BISSETT MELBOURNE, 19 JANUARY 2023

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

1. On 23 December 2022 Mrs Lilly Spencer 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. Mrs Spencer advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Splend on 17 October 2022 and that she was notified of her dismissal on 17 December 2022.

1. On 3 January 2023 the Commission attempted to contact Mrs Spencer on her nominated telephone number. A voicemail message was left advising her that had not served the minimum employment period and that she may be ineligible to make an unfair dismissal application.

1. Later that day the Commission emailed correspondence to Mrs Spencer’s nominated email address advising Mrs Spencer that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Spencer to file any documents/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 the application may be dismissed without further notice. An SMS notification was also sent to Mrs Spencer’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, on 16 January 2023 the Commission attempted to contact Mrs Spencer on her nominated telephone number. However, Mrs Spencer could not be reached. A voicemail message was left requesting that she contact the Commission to discuss her application.

1. To date Mrs Spencer 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. I am satisfied Mrs Spencer 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 Mrs Spencer has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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