Rebecca Kellie v Sodexo (IFM Services Pty Ltd)

[2023] FWC 2951

[2023] FWC 2951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Kellie
v

Sodexo (IFM Services Pty Ltd)

(U2023/9947)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 NOVEMBER 2023

Application for an unfair dismissal remedy - minimum employment period not met.

1. On 11 October 2023, Ms Rebecca Kellie made an unfair dismissal application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Kellie advised in the Unfair dismissal application Form F2 (Form F2) that she commenced employment with Sodexo (IFM Services Pty Ltd) (Respondent) on 3 August 2023 and her dismissal took effect on 20 September 2023. The termination date was confirmed in a termination letter attached to the Form F2, and in a telephone conversation with a member of the Commission’s staff on 30 October 2023, Ms Kellie confirmed the commencement and termination dates she had outlined in the Form F2. Despite being informed that this indicated she had not completed the minimum employment period required under s.382 and s.383 of the FW Act, Ms Kellie advised she wished to proceed with her application and subsequently confirmed this in writing.

1. The matter was then listed for a telephone Mention before me, the time for which was subsequently changed so that Ms Kellie could attend a job interview. A new time was set but despite having earlier confirmed she would be attending, Ms Kellie emailed my Chambers shortly before the Mention was scheduled to take place advising “Hello, I can not attend this morning I am unwell.” I did not consider this was acceptable and nor was I persuaded that Ms Kellie was incapacitated to the extent that she could not participate in the telephone Mention. The Mention proceeded but Ms Kellie did not respond to two phone calls from my Chambers at the appointed time. Ms Nina Pitt, who appeared for the Respondent, confirmed the commencement and termination dates outlined in the Form F2.

1. Under s.587(1)(c) of the FW Act, the Commission may dismiss an application if the application has no reasonable prospects of success. Having regard to the information before the Commission, I am satisfied that Ms Kellie has not completed the minimum employment period required under s.382 and s.383 of the FW Act, that she is therefore not a person protected from unfair dismissal and that it is appropriate that I exercise my discretion to dismiss Application U2023/9947 pursuant to s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR768164.

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