Nicola May Hill v Alpha Stone Benchtops Summary

[2022] FWC 91

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicola May Hill
v

Alpha Stone Benchtops

(U2021/12256)

COMMISSIONER BISSETT

MELBOURNE, 20 JANUARY 2022

Application for an unfair dismissal remedy

On 24 December 2021 Ms Nicola May Hill 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 Hill alleged she had been unfairly dismissed by Alpha Stone Benchtops (the Respondent).

Ms Hill advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Alpha Stone Benchtops on 2 September 2021 and that her dismissal took effect on 15 December 2021.

On 31 December 2021 the Commission contacted Ms Hill on her nominated telephone number. The Commission advised Ms Hill that she had not served the minimum employment period. Ms Hill advised the dates of employment on the Form F2 were correct.

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

As the required documentation was not received, on 13 January 2022 the Commission attempted to contact Ms Hill via her nominated telephone number. However, Ms Hill could not be reached. A voicemail message was left requesting Ms Hill to contact the Commission.

To date, Ms Hill 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 Hill 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

[1] PR737605.

Printed by authority of the Commonwealth Government Printer

Nicola May Hill applied to the Fair Work Commission for a remedy for unfair dismissal against her former employer, Alpha Stone Benchtops. Ms Hill alleged that she had been unfairly dismissed on 15 December 2021, after commencing employment on 2 September 2021. The central issue before the Commissioner was whether Ms Hill had completed the minimum employment period required to bring an unfair dismissal claim under the Fair Work Act 2009. Section 382 of the Act protects employees from unfair dismissal if they have completed the minimum employment period, which is either six months for non-small business employers or one year for small business employers.

The Commissioner determined that Ms Hill had not completed the requisite minimum employment period as she had been employed for less than six months at the time of her dismissal. The Commissioner noted that Ms Hill had not provided any documentation or evidence to substantiate her claim that she had indeed completed the required minimum employment period. Furthermore, despite multiple attempts to contact Ms Hill, she failed to respond to the Commission’s correspondence, thereby not addressing the concerns raised about the minimum employment period. Consequently, the Commissioner concluded that Ms Hill's application had no reasonable prospect of success, and dismissed the application under section 587(1)(c) of the Act.

The Commissioner ordered that an order be issued dismissing the application. This decision underscores the importance of meeting the minimum employment period requirement before bringing an unfair dismissal claim and highlights the Commission’s procedural expectations regarding the provision of necessary documentation.

Nicola May Hill v Alpha Stone Benchtops

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established