Samantha Vuk v S Hobbs & S Hobbs

[2023] FWC 2209

[2023] FWC 2209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samantha Vuk
v

S Hobbs & S Hobbs

(U2023/6977)

COMMISSIONER BISSETT MELBOURNE, 1 SEPTEMBER 2023

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

1. On 31 July 2023 Ms Samantha Vuk 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 Vuk advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with S Hobbs & S Hobbs on 23 January 2023 and that she was notified of her dismissal on 17 July 2023.

1. On 1 August 2023 the Commission contacted Ms Vuk’s representative on their nominated telephone number. The Commission advised Ms Vuk’s representative that Ms Vuk had not served the minimum employment period. It was explained to the representative that Ms Vuk may still be able to consider an alternative application.

1. Later that day the Commission emailed correspondence to Ms Vuk’s nominated email address advising Ms Vuk that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Vuk to file any documents or other 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 her application may be dismissed without further notice. An SMS notification was also sent to Ms Vuk’s nominated telephone number requesting that she contact the Commission.

1. On 2 August 2023 Ms Vuk contacted the Commission. Ms Vuk was advised further in relation to the minimum employment period, specifically that the period is calculated on the notification of dismissal date and not the date the dismissal took effect. Ms Vuk stated that she had been given incorrect advice and would contact her representative to discuss discontinuing her application.

1. As the required documentation was not received, on 14 August 2023 the Commission attempted to contact Ms Vuk on her nominated telephone number. However, Ms Vuk could not be reached. A voicemail message was left requesting Ms Vuk contact the Commission to provide confirmation as to whether she wanted to discontinue the Form F2 to pursue an alternative application.

1. Later that day, Ms Vuk contacted the Commission and advised that she had been unable to discuss the matter with her representative. Ms Vuk was advised that she had until the close of business that day to advise the Commission as to whether she wanted to proceed or discontinue the matter. Ms Vuk was advised that if the Commission did not receive direction, the matter may be dismissed. Ms Vuk was advised that she could provide her instructions via email.

1. To date Ms Vuk 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. I am satisfied Ms Vuk has not completed the required 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 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.

1. As Ms Vuk 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

Printed by authority of the Commonwealth Government Printer

<PR765762>