Meylen De La Jara v Ojema Group Pty Ltd
[2023] FWC 2696
•19 OCTOBER 2023
| [2023] FWC 2696 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Meylen De La Jara
v
Ojema Group Pty Ltd
(U2023/7509)
| COMMISSIONER BISSETT | MELBOURNE, 19 OCTOBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 12 August 2023 Ms Meylen De La Jara 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).
Ms De La Jara advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Ojema Group Pty Ltd in March 2023 and that her dismissal took effect on 21 July 2023.
On 17 August 2023 the Commission contacted Ms De La Jara on her nominated telephone number and advised her that she had not served the minimum employment period. The Commission provided information on request as to alternate applications. Ms De La Jara advised that she would need to look into an alternate application further and declined to discontinue this matter.
Later that day the Commission sent correspondence to Ms De La Jara’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 her 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 De La Jara’s nominated telephone number requesting that she contact the Commission.
As the required documentation was not received, on 24 August 2023 the Commission attempted to contact Ms De La Jara on her nominated telephone number. However, she could not be reached. A voicemail message was left requesting a call back to discuss her application.
On 1 September 2023 a final attempt was made by the Commission to contact Ms De La Jara on her nominated telephone number. However, she could not be reached. A voicemail message was left requesting a call back to discuss her application and also indicated that her application is in danger of being discontinued if the Commission did not hear back from her.
To date Ms De La Jara 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. I am satisfied Ms De La Jara has not completed the required minimum employment period.
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 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.
As Ms De La Jara as 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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