Margot Petrie v Noisette Retail Pty Limited T/A Noisette

[2022] FWC 1321

[2022] FWC 1321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Margot Petrie
v

Noisette Retail Pty Limited T/A Noisette

(U2022/5225)

COMMISSIONER BISSETT MELBOURNE, 27 MAY 2022

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

1. On 9 May 2022, Miss Margot Petrie 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. Miss Petrie advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Noisette Retail Pty Limited T/A Noisette on 25 November 2022 and that her dismissal took effect on 26 April 2022.

1. On 11 May 2022, the Commission emailed correspondence to Miss Petrie’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 Petrie 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. The Commission was unable to contact Ms Petrie via their nominated telephone number as she had not provided one.

1. As the required documentation was not received, on 24 May 2022 the Commission sent another email to Miss Petri’s nominated email to advise if she did not respond by 25 May 2022 her application may be closed.

1. To date, Miss Petrie 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 of at least the minimum employment period.

1. In the circumstances of this matter, I am satisfied Miss Petrie has not completed the required minimum employment period and his/her application has no reasonable prospects of success.

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 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.

1. Having regard to the circumstances of this matter I am satisfied that as Miss Petrie 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 to this effect will be issued shortly.

COMMISSIONER

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