Nerdene Stubbing v Labour Solutions Group Pty Ltd
[2022] FWC 1075
•9 MAY 2022
| [2022] FWC 1075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nerdene Stubbing
v
Labour Solutions Group Pty Ltd
(U2022/4194)
| COMMISSIONER BISSETT | MELBOURNE, 9 MAY 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 9 April 2022 Ms Nerdene Stubbing 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).
Ms Stubbing advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Labour Solutions Group Pty Ltd (the Respondent) on 27 September 2022 and that her dismissal took effect on 23 March 2022.
On 11 April 2022 the Commission attempted to contact Ms Stubbing on the telephone number nominated in the application however the number provided was invalid. The Commission then attempted to contact the person nominated to pay the application fee, however they were unavailable.
Later that day, the Commission emailed correspondence to Ms Stubbing’s nominated email address advising Ms Stubbing that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Stubbing to file any documents or evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Stubbing did not contact the Commission within 14 days the application may be dismissed without further notice.
On 19 April 2022 Ms Stubbing contacted the Commission helpline. Ms Stubbing was advised that to be eligible for unfair dismissal that the minimum employment period needs to have been completed. Information about other applications and contact information for legal advice was provided to her.
As the required documentation was not received, on 22 April 2022 further correspondence was sent to Ms Stubbing’s nominated email address reiterating that on the basis of the dates provided the minimum employment period had not been served. The email warned that if contact was not made in reply the application may be dismissed.
To date, Ms Stubbing has not replied to the Commission’s correspondence.
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.
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.
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.
Having regard to the circumstances of this matter I am satisfied that as Ms Stubbing 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 with this decision.
COMMISSIONER
[1] PR741367.
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