Nicole Little v Elgin's Hotel

[2024] FWC 103

[2024] FWC 103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicole Little
v

Elgin’s Hotel

(U2024/14877)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 JANUARY 2025

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

1. Miss Nicole Little applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 10 December 2024.

1. Miss Little stated in her unfair dismissal application (Form F2) that her employment with Elgin’s Hotel (the Respondent) commenced on 13 July 2024 and her dismissal took effect on 8 December 2024.

1. On 13 December 2024, the Commission attempted to contact Miss Little on her nominated telephone number. This was because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act. The Commission was not able to reach Miss Little. No voicemail facilities were available to leave a message.

1. Later that same day, the Commission emailed correspondence to Miss Little’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Miss Little to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Miss Little that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. The Commission did not receive any documentation in support of Miss Little’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period.

1. The Commission made a final attempt to contact Miss Little on her nominated telephone number on 30 December 2024. The call was not answered and no voicemail facilities were available to leave a voicemail message.

1. Miss Little has not responded to the Commission’s attempts to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 587 of the Act relevantly 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. A person applying for an unfair dismissal remedy under the Act needs to have completed a period of employment of at least 6 months with their employer to be protected from unfair dismissal. The material before the Commission indicates that Miss Little has not satisfied this requirement and, therefore, I am persuaded that her application has no reasonable prospects of success. As such, Miss Little’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.    

DEPUTY PRESIDENT

[1] PR783205.

Printed by authority of the Commonwealth Government Printer

<PR783204>