Ms Maria Manalo v Loral Ipsum (Aust) Pty. Ltd

[2024] FWC 2686

[2024] FWC 2686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Maria Manalo
v

Loral Ipsum (Aust) Pty. Ltd.

(U2024/6431)

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 Manalo applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 5 June 2024.

1. Ms Manalo stated in her unfair dismissal application (Form F2) that her employment with Loral Ipsum (Aust) Pty. Ltd. (the Respondent) commenced on 8 September 2023 and her dismissal took effect on 20 October 2023.

1. On 10 June 2024, the Commission attempted to contact Ms Manalo on her nominated telephone number. A voicemail message was left requesting Ms Manalo to contact the Commission to confirm the dates of her employment. This is because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act. The voicemail message also requested Ms Manalo to confirm if she would like to discontinue her application.

1. Later that day, the Commission emailed correspondence to Ms Manalo’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 Manalo 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 Manalo that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. The Commission did not receive any documentation in support of Ms Manalo’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 10 June 2024.

1. The Commission attempted to contact Ms Manalo on her nominated telephone number on 8 July 2024. The call was not answered and a voicemail message was left requesting Ms Manalo to contact the Commission to confirm her dates of employment. No response was received.

1. The Commission also attempted to contact Ms Manalo on her nominated telephone number on 24 July 2024. The call was not answered and a voicemail message was left requesting Ms Manalo to contact the Commission in relation to the minimum employment period.

1. On 25 July 2024, the Commission received a phone call from Ms Manalo, who agreed that the minimum employment period was not met in relation to her application and said she wished to obtain further information before considering discontinuing her application. A request was made for Ms Manalo to respond to the Commission’s correspondence in relation to her application and informing her that her application was at risk of being dismissed if no contact was received by 29 July 2024.

1. To date, Ms Manalo has not contacted the Commission or replied to the Commission’s correspondence in relation to her Form F2 application and has not discontinued her unfair dismissal 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 Manalo has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Manalo’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] PR779698

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<PR779696>