Monique Moore v Serene Country Living
[2022] FWC 2676
•5 OCTOBER 2022
| [2022] FWC 2676 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Monique Moore
v
Serene Country Living
(U2022/9251)
| COMMISSIONER BISSETT | MELBOURNE, 5 OCTOBER 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 14 September 2022 Ms Monique Moore 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 Moore advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Serene Country Living on 31 May 2022 but was unsure of exact date that her dismissal took effect, it could have been on either 31 August 2022, 6 September 2022 or 12 September 2022.
On 15 September 2022 the Commission attempted to contact Ms Moore on her nominated telephone number. A voicemail message was left requesting Ms Moore contact the Commission as she appeared to have not served the minimum employment period.
On 15 September 2022 the Commission emailed correspondence to Ms Moore’s nominated email address advising Ms Moore that on the basis of the information provided in the Form F2, she may not have served the minimum employment period. The correspondence directed Ms Moore to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Moore did not contact the Commission within 14 days, the application may be dismissed without further notice.
Later that day, Ms Moore sent the Commission an email with advice that Serene Country Living has over 14 employees and she was not given any notice of termination.
On 23 September 2022 Ms Moore re-sent the Commission an email with advice that Serene Country Living has over 14 employees and she was not given any notice of termination.
As the required documentation was not received, on 28 September 2022 the Commission attempted to contact Ms Moore via her nominated telephone number. A voicemail message was left advising Ms Moore that the Commission had received her emails on 15 September 2022 and 23 September 2022 and requesting she contact the Commission as she may have not served the minimum employment period.
To date, Ms Moore 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.
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 Ms Moore 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[1] to this effect will be issued shortly.
COMMISSIONER
[1] PR746497
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