Sarah Johnson v Bacchus Marsh Farm Supplies Pty. Limited

[2024] FWC 1641

[2024] FWC 1641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sarah Johnson
v

Bacchus Marsh Farm Supplies Pty. Limited

(U2024/2817)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 JULY 2024

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

1. On 12 March 2024, Ms Sarah Johnson made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. Ms Johnson advised in her Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Bacchus Marsh Farm Supplies Pty. Limited (the Respondent) on 11 January 2024, and her dismissal was effective from 9 March 2024.

1. On 15 March 2024, the Commission attempted to contact Ms Johnson on her nominated telephone number. A voicemail message was left requesting she contact the Commission in relation to her matter.

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

1. As the required documentation was not received, the Commission attempted to contact Ms Johnson on her nominated telephone number on 11 April 2024. Ms Johnson could not be reached. A voicemail message was left requesting that she contact the Commission as the Minimum Employment Period did not appear to have been met and the application could be dismissed.

1. As the required documentation was still not received, the Commission attempted to contact Ms Johnson on her nominated telephone number on 17 April 2024. Again, she could not be reached. Another voicemail message was left requesting that Ms Johnson contact the Commission as it appeared the Applicant did not meet the required Minimum Employment Period. The voicemail also warned that the application was at risk of being dismissed if no contact was received by 18 April 2024.

1. On 27 May 2024, the Commission again emailed correspondence to Ms Johnson, this time on an alternate email address that had been provided by her. The correspondence repeated the advice that, on the basis of the information provided in the Form F2, Ms Johnson had not served the minimum employment period. The correspondence also directed Ms Johnson to file any documents/evidence to support her claim that she had served the required minimum employment period. Ms Johnson was again warned that if she did not contact the Commission within 14 days, the application may be dismissed without further notice.

1. On 13 June 2024, a final attempt to contact Ms Johnson on her nominated telephone number was made. This call was not answered, and a voicemail was left for Ms Johnson to urgently contact the Commission.

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

1. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Ms Johnson has not completed the required minimum employment period.

1. Section 383 of the 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 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 the material before the Commission indicates Ms Johnson has not completed the required minimum employment period under the Act, I am persuaded the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act. An Order[1] to this effect will be issued with this decision.   

DEPUTY PRESIDENT

[1] PR776311.

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<PR776312>