Natassija-Belle James v Anytime Fitness

[2021] FWC 1230

[2021] FWC 1230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natassija-Belle James
v
Anytime Fitness
(U2021/1020)

COMMISSIONER BISSETT MELBOURNE, 9 MARCH 2021

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

[1] On 9 February 2021, Miss Natassija-Belle James 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).

[2] Miss James advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Anytime Fitness on 29 July 2020 and that her dismissal took effect on 19 January 2021.

[3] On 10 February 2021, the Commission attempted to contact Miss James on her nominated telephone numbers. A voicemail message was left advising Miss James that she had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Miss James’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss James to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss James did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss James’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 24 February 2021 the Commission attempted to contact Miss James via her nominated telephone numbers. However, Miss James could not be reached. A voicemail message was left requesting that she contact the Commission.

[6] To date, Miss James has not replied to the Commission’s correspondence.

[7] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[8] In the circumstances of this matter, I am satisfied Miss James has not completed the required minimum employment period and her application has no reasonable prospects of success.

[9] 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.

[10] Section 587(1) of the FW Act provides that:

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.

[11] Having regard to the circumstances of this matter I am satisfied that as Miss James has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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