Victoria Crawford v Fairway Bayside Aged Care Limited

[2022] FWC 2406

[2022] FWC 2406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Victoria Crawford

v

Fairway Bayside Aged Care Limited

(U2022/8629)

cOMMISSIONER bISSETT MELBOURNE, 9 SEPTEMBER 2022

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

1. On 23 August 2022, Victoria Crawford (the Applicant) 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. The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Fairway Bayside Aged Care Limited on 8 February 2022 and that she was notified of her dismissal on 4 August 2022.

1. On 25 August 2022, the Commission attempted to contact the Applicant on her nominated telephone number. A voicemail message was left requesting the Applicant contact the Commission as it appeared she had not served the minimum employment period.

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

1. As the required documentation was not received, on 6 September 2022 the Commission attempted to contact the Applicant via her nominated telephone number. The Applicant could not be reached. A voicemail message was left requesting a call back.

1. To date, the Applicant has not responded to the Commission.

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

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 prospects of success.

1. Having regard to the circumstances of this matter I am satisfied that as the Applicant 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 shortly.

COMMISSIONER

[1] PR745683

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