Sarah Forrest v Cafey Vinyet Pty Ltd

[2020] FWC 4091

[2020] FWC 4091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Forrest
v
Cafey Vinyet Pty Ltd
(U2020/9440)

COMMISSIONER BISSETT MELBOURNE, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 10 July 2020 Ms Sarah Forrest 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).

[2] Ms Forrest advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Cafey Vinyet Pty Ltd on 4 May 2020 and that her dismissal took effect on 5 July 2020.

[3] On 13 July 2020 the Commission attempted to contact Ms Forrest on her nominated telephone number. The call was unanswered and there was no option for the Commission to leave a voice message.

[4] Later that day, the Commission emailed correspondence to Ms Forrest’s nominated email address advising Ms Forrest that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Forrest to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Forrest did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Forrest’s nominated telephone number, requesting that she contact the Commission.

[5] As the required information was not received, on 23 July 2020 the Commission attempted to contact Ms Forrest via her nominated telephone number. However, Ms Forrest could not be reached. A 10 second voice-to-text message was left, requesting Ms Forrest contact the Commission.

[6] On 27 July 2020 the Commission again attempted to contact Ms Forrest via her nominated telephone number. However, Ms Forrest could not be reached. A voice message was left for Ms Forrest, advising her that it appeared she had not served the minimum employment period and requesting she contact the Commission urgently.

[7] To date, Miss Forrest has not replied to the Commission’s correspondence or phone calls.

[8] 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.

[9] 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.

[10] 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 prospects of success.

[11] In the circumstances of this matter, I am satisfied Ms Forrest has not completed the required minimum employment period.

[12] Having regard to the circumstances of this matter I am satisfied that as Ms Forrest 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 shortly.

COMMISSIONER

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