Rae Corstorphan v S Thomas Health Care Pty Ltd
[2023] FWC 2742
•23 OCTOBER 2023
| [2023] FWC 2742 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rae Corstorphan
v
S Thomas Health Care Pty Ltd
(U2023/8936)
| COMMISSIONER BISSETT | MELBOURNE, 23 OCTOBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 17 September 2023 Rae Corstorphan (the Applicant) 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).
The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with S Thomas Health Care Pty Ltd on 28 August 2023 and that their dismissal took effect on 28 August 2023.
On 21 September 2023 the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail message was left advising them that, on the basis of the information provided, they had not served the minimum employment period and asked that the Applicant contact the Commission to advise whether they wish to proceed with the matter. The Applicant was advised that if no response was received by 5 October 2023 the matter may be referred to a member of the Commission and may be dismissed without further notice.
Later that day the Commission sent correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed them to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice.
As the required documentation was not received, on 3 October 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, they could not be reached. A voicemail message was left advising that, on the basis of the information provided, they had not served the minimum employment period and requesting that they respond by 5 October 2023 to either discontinue the matter or confirm that they wish to proceed.
To date the Applicant has not replied to the Commission’s correspondence.
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 the Applicant 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 Rae Corstorphan 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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