Wendy Scott v Hobart Properties & Securieties Pty Ltd

[2023] FWC 1076

[2023] FWC 1076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wendy Scott
v

Hobart Properties & Securieties Pty Ltd

(U2023/2404)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 8 MAY 2023

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

1. On 22 March 2023 Ms Wendy Scott 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 Scott advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Hobart Properties & Securieties Pty Ltd on 3 December 2022 and that her dismissal took effect on 5 January 2023.

1. On 28 March 2023 the Commission contacted Ms Scott on her nominated telephone number. The Commission advised Ms Scott that she had not served the minimum employment period.

1. On the same day the Commission emailed correspondence to Ms Scott’s nominated email address advising Ms Scott that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Scott 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 they did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Ms Scott’s nominated telephone number requesting that they contact the Commission.

1. As the required documentation was not received, on 11 April 2023 the Commission attempted to contact Ms Scott on their nominated telephone number. However, Ms Scott could not be reached. A voicemail message was left requesting that she contact the Commission at the provided number.

1. To date Ms Scott 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 Scott 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 Scott 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

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