Poojaben Dalwadi v Boral Limited

[2024] FWC 2695

[2024] FWC 2695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Poojaben Dalwadi
v

Boral Limited

(U2024/8801)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

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

1. Ms Poojaben Dalwadi applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 28 July 2024.

1. Ms Dalwadi stated in her unfair dismissal application (Form F2) that her employment with Boral Limited (the Respondent) commenced on 18 March 2024 and that her dismissal took effect on 8 July 2024.

1. On 2 August 2024, the Commission emailed correspondence to Ms Dalwadi’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 Ms Dalwadi to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Dalwadi that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. Later that day, a SMS notification was sent to Ms Dalwadi’s nominated mobile number requesting her to contact the Commission.

1. The Commission did not receive any documentation in support of Ms Dalwadi’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period within the 14 day timeframe specified in the correspondence dated 2 August 2024.

1. The Commission made a final attempt to contact Ms Dalwadi on her nominated telephone number on 28 August 2024. The call was not answered and a voicemail was left requesting Ms Dalwadi to urgently contact the Commission in relation to her application by close of business on 30 August 2024 and informed her the reason for the call was in relation to the minimum employment period not being met. 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.

1. Ms Dalwadi did not respond and 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 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. To be protected from unfair dismissal, 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. The material before the Commission indicates that Ms Dalwadi has not satisfied this requirement and, therefore, I am satisfied that her application has no reasonable prospects of success. As such, Ms Dalwadi’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] PR779715.

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