Rebecca Kellie v Sodexo (IFM Services Pty Ltd)

[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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rebecca Kellie, an employee, filed an unfair dismissal application against Sodexo (IFM Services Pty Ltd) with the Fair Work Commission (FWC). The application was made under Section 394 of the Fair Work Act 2009, alleging that Ms Kellie's dismissal was unfair. Ms Kellie stated that she started working for Sodexo on 3 August 2023 and was dismissed on 20 September 2023. The dismissal dates were confirmed through a termination letter attached to the application form and in a subsequent telephone conversation with a Commission staff member. Despite being informed that she had not met the minimum employment period required under Sections 382 and 383 of the Fair Work Act, Ms Kellie insisted on proceeding with her application.

The legal issues the court needed to resolve were whether Ms Kellie had completed the minimum employment period as required by the Fair Work Act and if she was protected from unfair dismissal. The Commission had to consider if Ms Kellie's application had reasonable prospects of success under Section 587(1)(c) of the Fair Work Act. Ms Kellie did not attend a scheduled telephone Mention, despite earlier confirmation of her participation, and failed to respond to calls from the Commission's office. Sodexo's representative, Ms Nina Pitt, confirmed the employment and dismissal dates provided by Ms Kellie.

After reviewing the information, the Deputy President concluded that Ms Kellie had not completed the minimum employment period, hence was not protected from unfair dismissal under the Fair Work Act. The Deputy President decided to dismiss the application as it had no reasonable prospects of success, exercising the discretion provided under Section 587(1)(c). An order was issued to dismiss Application U2023/9947 accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established