Rawa Hamed v Sydney Dermal Lounge Pty Ltd

[2023] FWC 380

[2023] FWC 380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rawa Hamed

v

Sydney Dermal Lounge Pty Ltd

(U2023/425)

COMMISSIONER BISSETT MELBOURNE, 16 FEBRUARY 2023

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

1. On 15 January 2023 Ms Rawa Hamed 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 Hamed advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Sydney Dermal Lounge Pty Ltd on 21 November and that her dismissal took effect on 14 January. No year was specified for either date.

1. On 18 January 2023, the Commission attempted to contact Ms Hamed on her nominated telephone number. A voicemail message was left requesting a call back.

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

1. On 1 February 2023 Ms Hamed emailed the Commission and advised that she worked for the Respondent for two months. The Commission then attempted to contact Ms Hamed on her nominated telephone number. However, Ms Hamed could not be reached. A voicemail message was left requesting a call back.

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 Hamed 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 Hamed 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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