Samantha Daly v Compass

[2022] FWC 1849

[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.

1. 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).

1. 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.

1. 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.

1. 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.

1. 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.

1. To date, Ms Daly has not replied to the Commission’s correspondence.

1. 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.

1. 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.

1. 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.

1. 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.

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