Margot Petrie v Noisette Retail Pty Limited T/A Noisette Summary

[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.

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).

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.

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.

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.

To date, Miss Petrie has not replied to the Commission’s correspondence.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Miss Margot Petrie applied to the Fair Work Commission for relief from unfair dismissal by Noisette Retail Pty Limited T/A Noisette, which she claims occurred on 26 April 2022. Miss Petrie stated in her application that she began working for the company on 25 November 2022. The Commission informed Miss Petrie that, based on the information provided, she had not completed the minimum employment period required under the Fair Work Act 2009 (FW Act) for protection from unfair dismissal. The Commission requested further documentation to support her claim of having served the required period and warned that failure to respond would result in the dismissal of her application. Despite the Commission's attempts to contact Miss Petrie, she did not provide the required evidence or respond to the Commission's correspondence.

The central legal issue before the Commission was whether Miss Petrie had completed the minimum employment period as defined by the FW Act. Section 382 of the FW Act stipulates that a person is protected from unfair dismissal if they have completed a minimum employment period. The duration of this period varies depending on whether the employer is classified as a small business employer, with the period being six months for non-small business employers and one year for small business employers. The Commission had to determine whether Miss Petrie met this criterion to assess the validity of her unfair dismissal claim.

Upon reviewing the information provided by Miss Petrie and the lack of response to the Commission's requests for additional documentation, the Commission concluded that Miss Petrie had not completed the required minimum employment period. The Commission was satisfied that Miss Petrie's application had no reasonable prospect of success due to this deficiency. Consequently, the Commission dismissed the application under section 587(1)(c) of the FW Act, which allows for the dismissal of an application if it has no reasonable prospect of success. The Commission indicated that an order reflecting this decision would be issued shortly.

The Fair Work Commission dismissed Miss Petrie's application for unfair dismissal on the basis that she had not completed the minimum employment period required under the Fair Work Act. The Commission found that the application had no reasonable prospect of success and was therefore frivolous or vexatious. An Order dismissing the application will be issued, effectively concluding Miss Petrie's claim for relief from unfair dismissal.

Margot Petrie v Noisette Retail Pty Limited T/A Noisette

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established