Nikita Gillson v Guardian Early Learning Group Pty Ltd
[2023] FWC 1711
•18 JULY 2023
| [2023] FWC 1711 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nikita Gillson
v
Guardian Early Learning Group Pty Ltd
(U2023/4206)
| COMMISSIONER BISSETT | MELBOURNE, 18 JULY 2023 |
Application for an unfair dismissal remedy
On 16 May 2023 Ms Nikita Gillson 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 Gillson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Guardian Early Learning Group Pty Ltd on 3 January 2023 and that her dismissal took effect on 2 May 2023.
On 19 June 2023, the Commission emailed correspondence to Ms Gillson’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 Ms Gillson to file any documents or other 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.
Later that day, the Commission attempted to contact Ms Gillson via her nominated telephone number. However, Ms Gillson could not be reached. A voicemail message was left advising that the reason for the telephone call was to follow up on the email related to the necessary minimum employment period requirement sent earlier that day to her.
On 20 June 2023, Ms Gillson contacted the Commission. She was advised that, based on the information provided in the Form F2, she had not served the minimum employment period. Ms Gillson was also advised that if she no longer wished to pursue her application, she could file a notice of discontinuance. Ms Gillson advised the Commission that she would like to proceed with her application.
On 21 June 2023, the Commission attempted to contact Ms Gillson via her nominated telephone number. However, Ms Gillson could not be reached. A voice message was left requesting the Applicant contact the Commission as the information provided in her application suggested that she may not have met the minimum employment period.
As Ms Gillson had indicated she wished to continue with her application despite not having worked the minimum employment period necessary, the file was allocated to me on 27 June 2023.
On 27 June 2023 my chambers sent an email to Ms Gillson advising of the following:
· The Fair Work Act 2009 (FW Act) makes clear that, to be eligible for unfair dismissal a person must have completed at least 6 months service with the employer (or 12 months for a small business). The Commission has no discretion in relation to this time period. If you are not eligible to make an application the Commission cannot hear your application.
· On the information you have provided, you were not employed for at least 6 months (you commenced employment on 3 January 2023 and your employment was terminated with effect on 2 May 2023, totally 4 months)
· It is the Commissioner’s preliminary view that your application should be dismissed as it has no reasonable prospect of success.as you are not eligible to make an application.
In this email, Ms Gillson was asked to provide advice as to whether she wished to proceed with her application. This email also noted that if she did wish to proceed, I required her to file with the Commission submissions as to why I should not dismiss the application pursuant to s.587 of the FW Act on the grounds that it has no reasonable prospect of success by 30 June 2023.
To date, Ms Gillson 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 sets out when the Commission may dismiss an application. it provides:
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 Gillson has not completed the required minimum employment period under the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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