Rosemary Wilson v Cleanaway Daniels
[2023] FWC 454
•23 FEBRUARY 2023
| [2023] FWC 454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rosemary Wilson
v
Cleanaway Daniels
(U2023/661)
| COMMISSIONER BISSETT | MELBOURNE, 23 FEBRUARY 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 25 January 2023 Miss Rosemary Wilson 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).
Miss Wilson advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Cleanaway Daniels on 27 September 2022 and that her dismissal took effect on 25 January 2022.
On 30 January 2023 the Commission attempted to contact Miss Wilson on her nominated telephone number. A voicemail message was left requesting Miss Wilson contact the Commission to confirm her dates of employment as she may not have met the minimum employment period required to make an unfair dismissal application.
Later that day the Commission emailed correspondence to Miss Wilson’s nominated email address advising Miss Wilson that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed Miss Wilson to file any documents/evidence to support a 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. An SMS notification was also sent to Miss Wilson’s nominated telephone number requesting that she contact the Commission.
As the required documentation was not received, on 13 February 2023 the Commission attempted to contact Miss Wilson on her nominated telephone number. However, Miss Wilson could not be reached. A voicemail message was left requesting that Miss Wilson urgently contact the Commission in relation to her application. The voicemail also advised that, as per previous correspondence, it did not appear that the minimum period of employment had been met and unless further information was received the application may be dismissed.
To date Miss Wilson 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 Miss Wilson 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 Miss Wilson has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, I order that the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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