Raye Godber v Jomal Pty. Ltd

[2023] FWC 2215

[2023] FWC 2215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Raye Godber
v

Jomal Pty. Ltd.

(U2023/6821)

COMMISSIONER BISSETT MELBOURNE, 4 SEPTEMBER 2023

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

1. On 26 July 2023 Ms Raye Godber 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 Godber advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Jomal Pty. Ltd. in February 2023 and that her dismissal took effect on 21 July 2023.

1. On 27 July 2023 the Commission attempted to contact Ms Godber on her nominated telephone number. However, Ms Godber could not be reached.

1. Later that day, the Commission emailed correspondence to Ms Godber’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 Ms Godber 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 5 August 2023 the Commission received an email from Ms Godber asking which form to complete. However, the email did not include documents or other evidence to support her claim that she had served the required minimum employment period.

1. On 7 August 2023 the Commission attempted to contact Ms Godber on her nominated telephone number. However, Ms Godber could not be reached. A voicemail message was left advising Ms Godber that she may need to seek legal advice or to view the material available on the Commission website as to the appropriate application to make in her situation.

1. On 9 August 2023 the Commission received a call from Ms Godber. During the call, Ms Godber confirmed that she had received the previous correspondence sent by the Commission in relation to the minimum employment period and she advised that she had not met the minimum employment period. However, Ms Godber did not advise the Commission whether she would like to discontinue or proceed with the application and indicated that she would contact the Commission again before 14 days had passed.

1. Ms Godber did not contact the Commission as previously indicated, so on 16 August 2023 the Commission made a final attempt to contact Ms Godber on her nominated telephone number. However, Ms Godber could not be reached. A voicemail message was left advising Ms Godber that she had not served the minimum employment period and requested her to contact the Commission.

1. To date Ms Godber 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 Godber 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 Godber 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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