Ms Maria Corazon Rabino v Finance Unlimited Pty Ltd

[2024] FWC 2694

[2024] FWC 2694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Maria Corazon Rabino
v

Finance Unlimited Pty Ltd

(U2024/7875)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

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

1. Ms Maria Corazon Rabino applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 8 July 2024.

1. Ms Rabino stated in her unfair dismissal application (Form F2) that her employment with Finance Unlimited Pty Ltd (the Respondent) commenced on 15 April 2024 and her dismissal took effect on 10 June 2024.

1. On 11 July 2024, the Commission emailed correspondence to Ms Rabino’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Ms Rabino to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Rabino that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. Later that day, the Commission received email correspondence from Ms Rabino acknowledging that she had worked for a period less than the requisite minimum employment period and requesting advice on what application she can file instead.

1. On 12 July 2024 the Commission emailed correspondence to Ms Rabino’s nominated email address informing her that staff members of the Commission cannot provide legal advice. The email correspondence provided hyperlinks to Commission websites, such as a hyperlink to the website that provides information on how to apply to obtain legal advice from the Workplace Advisory Service.

1. On 23 July 2024, the Commission again emailed correspondence to Ms Rabino’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Ms Rabino to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Rabino that if she did not contact the Commission by 25 July 2024, her application might be dismissed without further notice.

1. The Commission did not receive any documentation in support of Ms Rabino’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the timeframe specified in the correspondence dated 23 July 2024.

1. A SMS notification was sent to Ms Rabino’s nominated mobile number requesting her to contact the Commission.

1. Ms Rabino did not respond and has not since responded to the Commission’s attempts to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. To be protected from unfair dismissal, a person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer. The material before the Commission indicates that Ms Rabino has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Rabino’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR779713.

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