Penelope Morton v Illawarra Coal Holdings Pty Ltd

[2022] FWC 3221

[2022] FWC 3221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Penelope Morton
v

Illawarra Coal Holdings Pty Ltd

(U2022/10829)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

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

1. On 11 November 2022 Ms Penelope Morton 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 Morton advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Illawarra Coal Holdings Pty Ltd on 16 May 2022 and that her dismissal took effect on 2 November 2022.

1. On 14 November 2022 the Commission sent correspondence to Ms Morton’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 Morton to file any documents or other evidence to support their 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. As the required documentation was not received, on 30 November 2022 the Commission attempted to contact Ms Morton on her nominated telephone number. However, Ms Morton could not be reached. A voicemail message was left requesting that a call back.

1. To date Ms Morton 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 she have completed a period of employment.

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 Morton has not completed the required minimum employment period under the FW Act, I have determined that the application has no reasonable prospect of success.

1. As such, I order that the application be dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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