Lisa Rose McDonald v The Dangleys Pty Ltd

[2021] FWC 5572

[2021] FWC 5572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Rose McDonald
v
The Dangleys Pty Ltd
(U2021/7231)

COMMISSIONER BISSETT MELBOURNE, 7 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] On 16 August 2021 Miss Lisa Rose McDonald 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). Miss McDonald alleged she was unfairly dismissed by The Dangleys Pty Ltd on 5 August 2021.

[2] Miss McDonald advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with the Respondent on 23 June 2021 and that her dismissal took effect on 5 August 2021.

[3] On 17 August 2021 the Commission attempted to contact Miss McDonald on her nominated telephone number. A voicemail message was left requesting a return call to the Commission informing Miss McDonald that she may not have satisfied the minimum employment period necessary to make an unfair dismissal application.

[4] Later that day, the Commission emailed correspondence to Miss McDonald’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 Miss McDonald to file any documents/evidence to support her claim that they had served the required minimum employment period. That correspondence also warned that if Miss McDonald did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss McDonald’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 2 September 2021 the Commission attempted to contact Miss McDonald via her nominated telephone number. However, Miss McDonald could not be reached. A voicemail was left requesting a call back and advising that clarification of the dates of employment was required, that the Commission had not yet received any response from her and that the Commission would likely close the matter.

[6] To date, Miss McDonald 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 Miss McDonald 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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