Ms Rochelle Wehbe v Sydney Catholic Early Childhood Services T/A Scecss Oshc in Fairfield

[2023] FWC 2372

[2023] FWC 2372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Rochelle Wehbe
v

Sydney Catholic Early Childhood Services T/A SCECSS OSHC in Fairfield

(U2023/7416)

COMMISSIONER BISSETT MELBOURNE, 19 SEPTEMBER 2023

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

1. On 10 August 2023, Ms Rochelle Wehbe (the Applicant) made an application to the Fair Work Commission for a remedy from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Sydney Catholic Early Childhood Services T/A SCECSS OSHC in Fairfield on 19 April 2023 and that her dismissal took effect on 11 July 2023.

1. On 15 August 2023, the Commission emailed correspondence to the Applicant and the Applicant representative’s nominated email addresses advising that, on the basis of the information provided in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant and their representative to file any documents or other evidence to support the Applicant’s claim that she had served the required minimum employment period. Further, this correspondence also requested that the Applicant pay the required lodgement fee for the application. The correspondence warned that if the Applicant or the Applicant’s representative did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. Later that day, an SMS message was also sent to the Applicant and the Applicant’s representative, requesting that they contact the Commission regarding the matter.

1. On 24 August 2023, the Commission attempted to contact the Applicant on her nominated telephone number. A voicemail message was left requesting that she call the Commission back as, based on the information in the Form F2, she had not served the minimum employment period. That same day, the Commission also attempted to contact the Applicant’s representative. The Applicant’s representative could not be reached. A voicemail message was left requesting that they call the Commission back.

1. As no further correspondence was received, on 30 August 2023, the Commission attempted to contact the Applicant on her nominated telephone number. A voicemail message was left requesting that she call the Commission back. The Commission also attempted to contact Applicant’s representative on her nominated phone number. The Applicant’s representative could not be reached, and a voicemail message was left requesting that she call the Commission back.

1. To date, neither the Applicant nor her representative have provided any further correspondence to the Commission.

1. 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 that the Applicant has not completed the required 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 the Applicant has 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
Printed by authority of the Commonwealth Government Printer

<PR766250>