Seyedeh Haniyeh Mortazavi v Justin Smith World IONM (Intra Operative Neuromonitoring Company)

[2022] FWC 2987

[2022] FWC 2987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Seyedeh Haniyeh Mortazavi
v

Justin Smith World IONM (Intra Operative Neuromonitoring Company)

(U2022/10066)

COMMISSIONER BISSETT MELBOURNE, 10 NOVEMBER 2022

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

1. On 15 October 2022 Mrs Seyedeh Haniyeh Mortazavi 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. Mrs Mortazavi advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Justin Smith World IONM (Intra Operative Neuromonitoring Company) on 15 June 2022 and that she was notified of her dismissal on 12 September 2022.

1. On 17 October 2022 the Commission contacted Mrs Mortazavi’s representative Mr Kevin Foley on his nominated telephone number as Mrs Mortazavi was overseas. The Commission advised Mr Foley that Mrs Mortazavi had not served the minimum employment period. Mr Foley acknowledged this but did not want to take any action until he had spoken to Mrs Mortazavi.

1. Later that day, the Commission emailed correspondence to Mrs Mortazavi’s nominated email address advising Mrs Mortazavi that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Mortazavi to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Mrs Mortazavi did not contact the Commission within 14 days, the application may be dismissed without further notice. This correspondence was also emailed to Mr Foley.

1. On 20 October 2022, an email was received from Mrs Mortazavi advising the Commission to speak to Mr Foley regarding her matter.

1. As the required documentation was not received, on 28 October 2022, the Commission attempted to contact Mr Foley via telephone. However, Mr Foley could not be reached. A voicemail message was left requesting a call back to discuss the minimum employment period and also advising the matter was now at risk of being dismissed.

1. There has been no further contact from Mr Foley or Mrs Mortazavi.

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 Mrs Mortazavi 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] PR747817

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