Rachel Black v Trucare

[2023] FWC 1061

[2023] FWC 1061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rachel Black
v

Trucare

(U2023/2347)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 5 MAY 2023

Application for an unfair dismissal remedy - minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 21 March 2023 Ms Rachel Black 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 Black advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Trucare in December 2022 and that her dismissal took effect on 8 March 2023.

1. On 28 March 2023 the Commission contacted Ms Black on her nominated telephone number. The Commission advised Ms Black that she had not served the minimum employment period. Ms Black advised she was a seasonal worker at Trucare back in 2021, she then resigned and recommenced with Trucare in December 2022. However, Ms Black terminated the phone call as the Commission staff member started to explain alternative options.

1. Later that day the Commission emailed correspondence to Ms Black’s nominated email address advising Ms Black that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Black 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 Ms Black’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 17 April 2023 the Commission attempted to contact Ms Black on her nominated telephone number. However, Ms Black could not be reached. A voicemail message was left requesting Ms Black contact the Commission by close of business 18 April 2023 as the dates supplied in her application suggest that she had not served the minimum employment period. She was warned that her matter was at risk of being dismissed if she failed to respond to the Commission.

1. To date Ms Black 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 Black 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 Black 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.

DEPUTY PRESIDENT

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