Ms Danielle Hetherington v Crewesharp

[2023] FWC 262

[2023] FWC 262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Danielle Hetherington
v

Crewesharp

(U2022/11861)

COMMISSIONER BISSETT MELBOURNE, 2 FEBRUARY 2023

Application for an unfair dismissal remedy

1. On 14 December 2022 Ms Danielle Hetherington 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 Hetherington advised in her Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Crewesharp in June 2022 and that her dismissal took effect on 14 December 2022.  Additionally, Ms Hetherington did not pay the required fee or file a completed waiver form.

1. On 15 December 2022 the Commission sent correspondence to Ms Hetherington’s nominated email address advising that on the basis of the information provided in her Form F2, she may not have served the minimum employment period and directed her to file any documents or other evidence to support her claim. Ms Hetherington was advised that she must make payment, file a waiver form and file supporting evidence to support her claim within 14 days or her matter would be at risk of being dismissed.

1. On 30 December 2022, and again on 5 January 2023 the Commission attempted to contact Ms Hetherington on her nominated telephone number to confirm her start date with the Respondent. The call was not answered on either occasion and a voicemail message was left asking Ms Hetherington to urgently contact the Commission and provide her exact start date.

1. A final attempt to contact Ms Hetherington was made by the Commission on 17 January 2023 to obtain further information as to her commencement date. The call was not answered and a voicemail message was left advising Ms Hetherington that she should urgently contact the Commission.

1. To date Ms Hetherington has not respondent to any of the Commission’s attempts to contact her and has not paid the required fee or completed a waiver form.

1. While Ms Hetherington has not advised of her precise commencement of employment date even in the best case of a start date of 1 June 2022 given her dismissal took effect on 14 December 2022 she could not have completed 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 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 Hetherington has not completed the required minimum employment period under the FW Act, I am satisfied that his 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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