Skyla Reynders v Jo Syme

[2023] FWC 1106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Skyla Reynders
v

Jo Syme

(U2023/3047)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 10 MAY 2023

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

On 10 April 2023 Ms Skyla Reynders 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 Reynders advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Jo Syme on 6 March 2023 and that their dismissal took effect on 5 April 2023.

On 17 April 2023 the Commission attempted to contact Ms Reynders on their nominated telephone number. A voicemail message was left requesting Ms Reynders contact the Commission to discuss the dates of employment at it appeared the minimum employment period had not been met.

Later that day the Commission emailed correspondence to Ms Reynders’s nominated email address advising Ms Reynders that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Reynders 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. An SMS notification was also sent to Ms Reynders’s nominated telephone number requesting that she contact the Commission.

As the required documentation was not received, on 4 May 2023 the Commission attempted to contact Ms Reynders on her nominated telephone number. However, Ms Reynders could not be reached. A voicemail message was left advising that the matter was still incomplete and requested that she contact the Commission to discuss the matter by close of business 5 May 2023, as the dates supplied in her application suggest she had not served the minimum employment period. Otherwise, if no response was received, the matter may be at risk of being dismissed.

To date Ms Reynders 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. I am satisfied Ms Reynders has not completed the required 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 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.

As Ms Reynders has not completed the required minimum employment period under the FW Act the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was presented with an unfair dismissal claim by Ms Skyla Reynders against her former employer, Jo Syme. Ms Reynders alleged that she was dismissed unfairly and sought a remedy under the Fair Work Act 2009. The Commission was required to determine whether Ms Reynders had served the minimum employment period, as stipulated by the Act, which is a prerequisite for protection against unfair dismissal. Ms Reynders claimed to have commenced employment on 6 March 2023 and was dismissed on 5 April 2023, which was less than the required minimum employment period.

The central legal issue was whether Ms Reynders had completed the minimum employment period under the Fair Work Act. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. The minimum employment period is six months if the employer is not a small business employer, and one year if the employer is a small business employer. Section 587 of the Act allows the Fair Work Commission to dismiss an application if it has no reasonable prospect of success, including where the minimum employment period has not been met. The Commission was tasked with verifying the dates of employment provided by Ms Reynders and determining if they met the statutory requirements.

Upon reviewing the information provided by Ms Reynders, the Commission determined that she had not completed the required minimum employment period. Despite multiple attempts to contact Ms Reynders to request additional documentation, she did not respond. Consequently, the Commission concluded that Ms Reynders's claim had no reasonable prospect of success and was dismissed under section 587(1)(c) of the Fair Work Act.

The Commission dismissed Ms Reynders's application for an unfair dismissal remedy. The decision was based on the finding that Ms Reynders had not completed the required minimum employment period, which is a statutory prerequisite for protection against unfair dismissal.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established