Wichuda Tangthanomwong v Schibello Coffee Pty Ltd
[2022] FWC 2206
•19 AUGUST 2022
| [2022] FWC 2206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wichuda Tangthanomwong
v
Schibello Coffee Pty Ltd
(U2022/7705)
| cOMMISSIONER bISSETT | MELBOURNE, 19 AUGUST 2022 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
Ms Wichuda Tangthanomwong (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) on 21 July 2022
The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Schibello Coffee Pty Ltd on 24 January 2022 and that her dismissal took effect on 4 July 2022.
On 22 July 2022, the Commission attempted to contact the Applicant on her nominated telephone number. A voicemail message was left advising the Applicant that it did not appear that she had served the minimum employment period.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email advising her that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned the Applicant that if she did not contact the Commission within 14 days the application may be dismissed without further notice.
Later that day, the Fair Work Commission Helpline called the Applicant. She was advised that she had not served the minimum employment period and she had 14 days to provide any relevant information to the Commission. The Applicant was advised she could withdraw her application but she said that she would seek legal advice before making deciding what to do.
As the required documentation was not received the Commission attempted to contact the Applicant via her nominated telephone number on 4 August 2022. However, she could not be reached. A voicemail message was left requesting that she contact the Commission by the next day to advise as to what action she would like to take. Failure to do so would lead to her application being dismissed.
To date, the Applicant 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 of at least the minimum employment period. In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period and his/her application has no reasonable prospects of success.
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 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.
Having regard to the circumstances of this matter I am satisfied that as Ms Tangthanomwong 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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