Samantha Daly v Compass

[2022] FWC 1849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samantha Daly
v

Compass

(U2022/6611)

COMMISSIONER BISSETT

MELBOURNE, 15 JULY 2022

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

On 24 June 2022 Ms Samantha Daly 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 Daly advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Compass in February 2022 and that her dismissal took effect on 16 June 2022.

On 28 June 2022, the Commission contacted Ms Daly on her nominated telephone number. The Commission advised Ms Daly that she had not served the minimum employment period, the submitted application is incomplete and also unpaid. Ms Daly was provided with information in relation to alternative application she could consider. Ms Daly advised she would consider the option and contact the Commission in due course. Ms Daly was also provided with information regarding legal advice referrals.

Later that day, the Commission emailed correspondence to Ms Daly’s nominated email address advising Ms Daly that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Daly to file any documents/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.

As the required documentation was not received, on 12 July 2022 the Commission attempted to contact Ms Daly by telephone, but the call was not answered. A voicemail message was left requesting that she contact the Commission.

To date, Ms Daly 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 of at least the 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 that:

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.

Having regard to the circumstances of this matter I am satisfied that as Ms Daly has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR743802.

Printed by authority of the Commonwealth Government Printer

In the case of Samantha Daly v Compass, the applicant, Samantha Daly, sought a remedy for unfair dismissal from the Fair Work Commission. Daly alleged that she had been unfairly dismissed by her employer, Compass, and that her dismissal was unjust. The Fair Work Commission, presided over by Commissioner Bissett, was tasked with determining whether Daly's dismissal was indeed unfair and if she was entitled to any relief under the Fair Work Act 2009. The central issue in this case was whether Daly had completed the minimum employment period as stipulated in the Fair Work Act before her dismissal, which would entitle her to protection from unfair dismissal. If Daly had not served the requisite period, her application would lack reasonable prospects of success.

The Fair Work Act mandates that a person is protected from unfair dismissal only if they have completed a specified minimum employment period. This period is six months if the employer is not a small business employer, and one year if the employer is a small business employer. Daly's application was initially reviewed, and it was determined that she had not fulfilled the minimum employment period, rendering her application incomplete and unpaid. Despite subsequent correspondence and attempts by the Commission to contact Daly for further documentation, she did not respond or provide the necessary evidence to substantiate her claim of having served the required employment period. Consequently, the Commission found that Daly's application had no reasonable prospect of success due to her failure to meet the minimum employment period requirement.

Given that Daly had not served the minimum employment period, the Commission dismissed the application under section 587(1)(c) of the Fair Work Act. The dismissal was made on the basis that the application had no reasonable prospect of success. An order will be issued to formally record the dismissal of Daly's application. This decision underscores the importance of meeting the statutory requirements for protection against unfair dismissal and highlights the Commission's role in ensuring that applications are both complete and have a reasonable likelihood of success.

CaseChat Overview and Summary

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