Mary Rose Tito v Pearl Home Care Sydney Outer West

[2022] FWC 1074

[2022] FWC 1074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mary Rose Tito
v

Pearl Home Care - Sydney Outer West

(U2022/3716)

COMMISSIONER BISSETT MELBOURNE, 9 MAY 2022

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

1. On 29 March 2022 Mrs Mary Rose Tito 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 Tito advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Pearl Home Care - Sydney Outer West (the Respondent) on 8 February 2022 and that her dismissal took effect on 25 March 2022.

1. On 29 March 2022 the Commission contacted Mrs Tito on her nominated telephone number. The Commission advised Ms Tito that it appeared she had not served the minimum employment period. During this phone conversation the applicant confirmed that she understood she had not met the minimum employment period. Despite the Commission informing that the application may be dismissed on this basis, Mrs Tito confirmed she wished to proceed with her application.

1. Later that day, the Commission emailed correspondence to Mrs Tito 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 Tito to file any documents or evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Mrs Tito did not contact the Commission within 14 days, the application may be dismissed without further notice. 

1. As the required documentation was not received, on 22 April 2022 the Commission attempted to contact the applicant via telephone, however Mrs Tito could not be reached. A voicemail message was left requesting that she contact the Commission to discuss the minimum employment period. Ms Tito was warned that failure to do so may result in the application being dismissed.

1. To date, Mrs Tito has not replied to the Commission’s correspondence or responded to the most recent telephone call.

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. 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 Mrs Tito has not completed the required minimum employment period under the FW Act, his/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

[1] PR741362.

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