Sarah Lee v Pharmacy Guild of Australia
[2022] FWC 1151
•13 MAY 2022
| [2022] FWC 1151 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sarah Lee
v
Pharmacy Guild of Australia
(U2022/4198)
| COMMISSIONER BISSETT | MELBOURNE, 13 MAY 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 9 April 2022 Ms Sarah Lee 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 Lee advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Pharmacy Guild of Australia on 12 October 2021 and that she was notified of her dismissal on 8 April 2022.
On 11 April 2022, the Commission attempted to contact Ms Lee on her nominated telephone number. A voicemail message was left requesting she contact the Commission to discuss her dates of employment in relation to the required minimum employment period.
Later that day, the Commission emailed correspondence to Ms Lee’s nominated email address advising that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Lee 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 22 April 2022 the Commission attempted to contact Ms Lee via telephone. However, Ms Lee could not be reached. A voicemail message was left requesting that she urgently contact the Commission in relation to the matter and advising that as per previous correspondence the minimum employment period had not been met and that the matter was at risk of being dismissed.
On 27 April 2022 Ms Lee’s application was referred to me. On 6 May 2022 my chambers issued the following correspondence to Ms Lee:
Your application seeking a remedy for unfair dismissal has been referred to Commissioner Bissett, National Practice Leader.
The Commission has attempted to contact you by telephone and email but you have not responded.
From the information provided on your application form your employment was terminated on 8 April 2022 when you were provided a termination letter. However, it is not clear the date you finished working for the Pharmacy Guild – that is whether you worked a notice period beyond 8 April 2022 or if you were paid in lieu of working the notice period.
The Commission requires this information be clarified so it can be determined if you are eligible to make a claim for unfair dismissal.
Could you please advise the Commission on the information sought by 4.00pm Tuesday 10 May 2022. A failure to respond to this correspondence will result in your application being dismissed.
To date, Ms Lee 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 Lee 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] PR741574.
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