Meagan Ponting v The trustee for Solomos Family Trust

[2023] FWC 1753

[2023] FWC 1753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Meagan Ponting
v

The trustee for Solomos Family Trust

(U2023/5268)

COMMISSIONER BISSETT MELBOURNE, 19 JULY 2023

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

1. On 14 June 2023 Ms Meagan Ponting 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. Ms Ponting advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with The trustee for Solomos Family Trust on 24 April 2023 and that her dismissal took effect on 8 June 2023.

1. On 19 June 2023, the Commission emailed correspondence to Ms Ponting’s nominated email address advising Ms Ponting that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Ponting to file any documents or other 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 Ms Ponting’s nominated telephone number requesting that she contact the Commission.

1. As the required documentation was not received, on 5 July 2023 the Commission attempted to contact Ms Ponting on her nominated telephone number. However, Ms Ponting could not be reached. A voicemail message was left requesting that she contact the Commission regarding her application since it had not met the minimum employment period.

1. To date Ms Ponting 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 Ms Ponting 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 Ms Ponting has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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