Meng Li v Eunoia Education Pty Ltd

[2023] FWC 3379

[2023] FWC 3379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Meng Li
v

Eunoia Education Pty Ltd

(U2023/10028)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 13 October 2023, Meng Li (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The Applicant advised in the Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Eunoia Education Pty Ltd on Thursday, 16 March 2023 and that she was notified of her dismissal on Monday, 4 September 2023.

1. On 18 October 2023, the Commission contacted the Applicant on their nominated telephone number through the Translating and Interpreting Service (TIS). The Commission advised the Applicant, via a Mandarin interpreter, that they had not served the minimum employment period. The Applicant was further informed that they could obtain legal advice about the various options.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed the Applicant 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.

1. On 1 November 2023, the Commission attempted to contact the Applicant on her nominated telephone number twice, as the required documentation had not been received. On both attempts the Applicant answered the call, however, due to a technical issue, Commission staff could not be heard. The Applicant subsequently disconnected both calls.

1. On 2 November 2023, the Commission again attempted to contact the Applicant on her nominated telephone number. The Applicant did not answer. A voicemail message was left, re-iterating that, based on the information the Applicant had provided, she did not meet the minimum employment period required for her matter to proceed with the Commission. The message further requested the Applicant contact the Commission as a matter of urgency.
   
   

2. To date, the Applicant has not replied to the Commission’s correspondence.

Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a minimum period of employment.

1. Section 383 of the 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 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 the material before the Commission indicates the Applicant has not completed the required minimum employment period under the Act, I am satisfied the 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.

DEPUTY PRESIDENT

[1] PR769514.

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<PR769513>