Sheridan Louise Joicey v Lovisa Pty Limited

[2022] FWC 700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sheridan Louise Joicey
v

Lovisa Pty Limited

(U2022/2672)

COMMISSIONER BISSETT

MELBOURNE, 29 MARCH 2022

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

On 2 March 2022 Ms Sheridan Louise Joicey 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 Joicey advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Lovisa Pty Limited on 18 November 2021 and that she was notified of her dismissal on 1 March 2022.

On 3 March 2022 the Commission attempted to contact Ms Joicey via telephone. A voicemail message was left advising Ms Joicey that she had not served the minimum employment period.

Later that day, the Commission emailed correspondence to Ms Joicey’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Joicey 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 17 and 25 March 2022 the Commission attempted to contact Ms Joicey’ by telephone. However, Ms Joicey could not be reached. A voicemail message was left on both occasions requesting that she contact the Commission.

To date, Ms Joicey 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 Joicey 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] PR739817

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Sheridan Louise Joicey v Lovisa Pty Limited, Ms Joicey applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009, asserting that she was dismissed by her employer, Lovisa Pty Limited, on 1 March 2022. The Commission was informed that Ms Joicey had commenced her employment on 18 November 2021. The Commission contacted Ms Joicey, informing her that she had not completed the requisite minimum employment period to make an unfair dismissal claim, as per section 382 of the Act. Despite multiple attempts to contact Ms Joicey, she did not provide any evidence to substantiate her claim that she had completed the minimum employment period.

The central issue for the Fair Work Commission to decide was whether Ms Joicey had fulfilled the minimum employment period stipulated in the Fair Work Act 2009. This determination was crucial as it would affect the admissibility of her unfair dismissal application. Specifically, the Commission needed to ascertain whether Ms Joicey had worked for at least six months if Lovisa Pty Limited was not a small business employer or one year if it was a small business employer, as per section 383 of the Act. Another pertinent issue was whether Ms Joicey's application had any reasonable prospect of success, which would influence the decision on whether to proceed with the application under section 587(1)(c) of the Act.

The Commission found that Ms Joicey had not completed the minimum employment period, as per the information provided in her application and subsequent correspondence. Given that Ms Joicey did not respond to the Commission's requests for further evidence, the Commission concluded that her application had no reasonable prospect of success. Therefore, the application was dismissed under section 587(1)(c) of the Act. The Commission issued an order dismissing Ms Joicey's application for unfair dismissal, and this decision was communicated to the parties involved.

This decision underscores the importance of completing the minimum employment period to be eligible for protection under the Fair Work Act 2009. The Commission's dismissal of Ms Joicey's application highlights the need for applicants to provide adequate evidence to substantiate their claims and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established