Nilisha Adhikari v Angela Thwaites

[2023] FWC 2074

[2023] FWC 2074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nilisha Adhikari
v

Angela Thwaites

(U2023/6391)

COMMISSIONER BISSETT MELBOURNE, 22 AUGUST 2023

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

1. On 14 July 2023, Nilisha Adhikari (the Applicant) 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).

1. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Angela Thwaites (the Respondent) on 9 March 2023 and that their dismissal took effect on 10 July 2023.

1. On 18 July 2023, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was requesting that the Applicant call back the Commission with regards to the minimum employment period.

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

1. In response to this correspondence, the Commission received an email on 18 July 2023 from the Applicant stating that they were a casual working on a regular basis, but no further information was provided as to the employment period they had served.

1. On 2 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left advising the Applicant that they had not met the minimum employment period and requested that they contact the Commission by 3 August 2023. The Applicant was further advised that a failure to contact the Commission by this date may result in their application being dismissed without further notice.

1. To date, no further correspondence from the Applicant has been received by the Commission.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied that the Applicant has not completed the required minimum employment period.

1. 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.

1. Section 587(1) of the FW Act 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 prospect of success.

1. As Nilisha Adhikari 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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