Roopa Singh v DB Schkner
[2023] FWC 1286
•31 MAY 2023
| [2023] FWC 1286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roopa Singh
v
DB Schkner
(U2023/3762)
| COMMISSIONER BISSETT | MELBOURNE, 31 MAY 2023 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 1 May 2023 Ms Roopa Singh 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).
Ms Singh advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with DB Schkner on 20 March 2023 and that their dismissal took effect on 12 April 2023.
On 9 May 2023 the Commission contacted Ms Singh on their nominated telephone number. The Commission advised Ms Singh that they had not served the minimum employment period and that further information would be emailed to Ms Singh’s email address. Ms Singh understood and advised that they would review the correspondence from the Commission.
Later that day the Commission emailed correspondence to Ms Singh’s nominated email address advising Ms Singh that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed Ms Singh 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 22 May 2023 the Commission attempted to contact Ms Singh on their nominated telephone number. Ms Singh requested a call back at a different time. Later that day, the Commission attempted to call Ms Singh again on their nominated telephone number, however, Ms Singh could not be reached. A voicemail message was left requesting that Ms Singh contact the Commission to discuss their application as it is at risk of being dismissed.
To date Ms Singh 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 Ms Singh 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 Ms Singh 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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