Vanessa Turner v SMYC Pty Ltd

[2023] FWC 723

[2023] FWC 723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vanessa Turner
v

SMYC Pty Ltd

(U2023/1486)

COMMISSIONER BISSETT MELBOURNE, 27 MARCH 2023

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

1. On 24 February 2023 Ms Vanessa Turner 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. Ms Turner advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with SMYC Pty Ltd on 5 September 2023 and that she was notified of her dismissal on 15 February 2023.

1. On 26 February 2023 the Commission emailed correspondence to Ms Turner’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 Turner to file any documents or other 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.

1. On 2 March 2023 the Commission attempted to contact Ms Turner on her nominated telephone number. A voicemail message was left requesting Ms Turner to call the Commission on the number provided as the requirement of the minimum employment period has not been satisfied.

1. As the required documentation was not received, on 23 March 2023 the Commission attempted to contact Ms Turner on their nominated telephone number. Ms Turner appeared to pick up the phone, however the connection was then lost. There was no capacity for a voicemail message to be left at this time.

1. To date Ms Turner has not replied to the Commission’s correspondence.

1. 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 Turner has not completed the required 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 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.

1. As Ms Turner 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.

COMMISSIONER

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