Olive Amorita Lavinia Kusu-Tamwoy v Gur a Baradharaw Kod Torres Strait Sea and Land Council

[2023] FWC 722

[2023] FWC 722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Olive Amorita Lavinia Kusu-Tamwoy
v

Gur A Baradharaw Kod Torres Strait Sea And Land Council

(U2023/1480)

COMMISSIONER BISSETT MELBOURNE, 24 MARCH 2023

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

1. On 23 February 2023 Ms Olive Amorita Lavinia Kusu-Tamwoy 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. Ms Kusu-Tamwoy advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Gur A Baradharaw Kod Torres Strait Sea And Land Council on 5 September 2022 and she was notified of her dismissal on 22 February 2022.

1. On 26 February 2022 the Commission sent correspondence to Ms Kusu-Tamwoy’s nominated email address advising Ms Kusu-Tamwoy that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Kusu-Tamwoy 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.

1. On 2 March 2023 the Commission attempted to contact Ms Kusu-Tamwoy on her nominated telephone number. A voicemail message was left requesting she contact the Commission to discuss the required minimum employment period for an unfair dismissal application. The Commission’s contact number and matter number for this application was also provided.

1. As the required documentation was not received, on 23 March 2023 the Commission attempted to contact Ms Kusu-Tamwoy on her nominated telephone number. However, Ms Kusu-Tamwoy could not be reached. A voicemail message was left advising that her application was in the process of being referred to a Member of the Commission as no further information has been provided about her employment dates and to call the Commission to discuss this.

1. To date Ms Kusu-Tamwoy has not replied to the Commission’s correspondence.

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 Ms Kusu-Tamwoy 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 Ms Kusu-Tamwoy 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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