Rachael Grey-Richards v Butter Fish Services Vic Pty Ltd

[2023] FWC 2733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rachael Grey-Richards
v

Butter Fish Services Vic Pty Ltd

(U2023/8765)

COMMISSIONER BISSETT

MELBOURNE, 19 OCTOBER 2023

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

On 13 September 2023 Miss Rachael Grey-Richards 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).

Miss Grey-Richards advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Butter Fish Services Vic Pty Ltd on 29 May 2023 and that her dismissal took effect on 31 August 2023.

On 18 September 2023 the Commission sent correspondence to Miss Grey-Richards’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 her 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. An SMS notification was also sent to Miss Grey-Richards’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 29 September 2023 the Commission attempted to contact Miss Grey-Richards on her nominated telephone number. However, the call with Miss Grey-Richards disconnected. Later that same day, Miss Grey-Richards telephoned the Commission and was informed that she did not meet the minimum employment period criteria and was not eligible to continue with the application. Miss Grey-Richards requested time to seek legal advice, and was advised that the matter was urgent and without further action her matter could be at risk of being dismissed.

As of the date of this decision Miss Grey-Richards has not provided advice to the Commission to demonstrate that she may have completed the minimum employment period.

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 Miss Grey-Richards has not completed the required 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(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.

As Miss Grey-Richards 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

Printed by authority of the Commonwealth Government Printer

Rachael Grey-Richards sought relief from the Fair Work Commission for unfair dismissal by Butter Fish Services Vic Pty Ltd. She claimed to have commenced employment on 29 May 2023 and was dismissed on 31 August 2023. The Commission notified Grey-Richards that she did not meet the minimum employment period under the Fair Work Act 2009, which is six months for employers who are not small businesses. The Commission requested evidence to support her claim of meeting this period but received none, leading to the dismissal of her application.

The primary legal issue in this case was whether Rachael Grey-Richards had completed the minimum employment period required to be protected from unfair dismissal under the Fair Work Act. The Fair Work Commission needed to determine if the applicant had fulfilled the statutory requirement of having been employed for at least six months by the time of her dismissal. The Commission also needed to assess whether the application had any reasonable prospect of success, given the lack of evidence provided by Grey-Richards.

In evaluating the case, the Fair Work Commission found that Grey-Richards had not provided sufficient evidence to demonstrate that she had been employed for the requisite six-month period. Section 382 of the Fair Work Act stipulates that a person is protected from unfair dismissal if they have completed the minimum employment period. Given the absence of evidence, the Commission concluded that Grey-Richards did not meet this criterion. Under Section 587(1)(c) of the Fair Work Act, the Commission dismissed the application as it had no reasonable prospect of success due to the failure to meet the minimum employment period requirement.

As a result of the findings, the Fair Work Commission dismissed Rachael Grey-Richards' application for unfair dismissal. The Commission determined that her application could not proceed because she did not satisfy the statutory condition of having completed the minimum employment period. Consequently, the application was dismissed without further consideration, and no relief was granted to the applicant.

CaseChat Overview and Summary

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Legal Principle Established