Natalia Jankovic v Melcorp Strata

[2023] FWC 150

[2023] FWC 150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Natalia Jankovic
v

Melcorp Strata

(U2022/12065)

COMMISSIONER BISSETT MELBOURNE, 19 JANUARY 2023

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

1. On 20 December 2022 Ms Natalia Jankovic 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 Jankovic advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Melcorp Strata on 29 August 2022 and that her dismissal took effect on 9 December 2022.

1. On 29 December 2022 the Commission attempted to contact Ms Jankovic on her nominated telephone number. A voicemail message was left requesting that she contact the Commission regarding her application. The voicemail explained that on the basis of the information provided in the Form F2 application, she appeared not to have met the minimum employment period required to make an unfair dismissal application.

1. Later that day the Commission emailed correspondence to Ms Jankovic’s nominated email address advising Ms Jankovic that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Jankovic to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice

1. On 10 January 2023, Ms Jankovic emailed the Commission requesting more time to respond to the email of 29 December 2022.

1. On 11 January 2023 the Commission replied to Ms Jankovic informing her that more time could not be afforded and a response was due by close of business 12 January 2023.

1. Later that day, Ms Jankovic then sent in a number of documents including her employment contract which confirmed that her employment has begun on 29 August 2022. The correspondence did not provide any evidence that she had served the minimum employment period.

1. As the required documentation was not received, on 11 January 2023 the Commission attempted to contact Ms Jankovic on her nominated telephone number.  However, Ms Jankovic could not be reached. A voicemail message was left requesting that she urgently contact the Commission regarding her application.

1. On 13 January 2023, the Commission attempted to contact Ms Jankovic’s named representative to inform him that the application was at risk of dismissal however he could not be reached. A voicemail message was left requesting he or Ms Jankovic contact the Commission.

1. To date neither Ms Jankovic nor her representative have replied to the Commission’s correspondence.

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 Ms Jankovic 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 Ms Jankovic has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR749788>