Teanna Mueller v Hello Harry

[2020] FWC 2389

[2020] FWC 2389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teanna Mueller
v
Hello Harry
(U2020/4353)

COMMISSIONER BISSETT MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 8 April 2020, Miss Teanna Mueller 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).

[2] Miss Mueller advised in the Form F2 Unfair Dismissal Application that she commenced employment with Hello Harry on 9 October 2019 and that her dismissal took effect on 7 April 2020.

[3] On 8 April 2020, the Commission attempted to contact Miss Mueller on her nominated telephone number. A voicemail message was left advising Miss Mueller that she had not served the minimum employment period.

[4] Later that day, the Commission emailed correspondence to Miss Mueller advising that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Mueller to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also advised Miss Mueller 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 Miss Mueller’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 23 April 2020 the Commission attempted to contact Miss Mueller via her nominated telephone number. Miss Mueller could not be reached and a voicemail message was left requesting that she contact the Commission.

[6] To date, Miss Mueller has not replied to the Commission’s correspondence.

[7] 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.

[8] In the circumstances of this matter, I am satisfied Miss Mueller has not completed the required minimum employment period and her application has no reasonable prospects of success.

[9] 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.

[10] 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 prospects of success.

[11] Having regard to the circumstances of this matter I am satisfied that as Miss Mueller 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 to this effect will be issued shortly.

COMMISSIONER

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