Yazmin Aliste Birkelbach v Australian Leisure and Hospitality Group Pty Limited Summary

[2023] FWC 1210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yazmin Aliste Birkelbach
v

Australian Leisure And Hospitality Group Pty Limited

(U2023/3427)

COMMISSIONER BISSETT

MELBOURNE, 24 MAY 2023

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

On 20 April 2023 Yazmin Aliste Birkelbach (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).

The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Australian Leisure And Hospitality Group Pty Limited on 30 March 2023 and that their dismissal took effect on 19 April 2023.

On 27 April 2023 the Commission contacted the Applicant on their nominated telephone number. The Commission advised the Applicant that they had not served the minimum employment period. The Applicant advised the Commission that they will seek some legal advice before discontinuing this matter.

Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising the Applicant 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 their claim that they 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 the Applicant’s nominated telephone number requesting that they contact the Commission.

As the required documentation was not received, on 10 May 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant contact the Commission with any documents or other evidence to support their claim that they had served the required minimum employment period, otherwise the matter will be referred to a Member and may be 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. I am satisfied the Applicant has not completed the required minimum employment period.

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 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.

As the Applicant 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
Printed by authority of the Commonwealth Government Printer

The Applicant, Yazmin Aliste Birkelbach, applied to the Fair Work Commission for a remedy for unfair dismissal under the Fair Work Act 2009. The Applicant was employed by Australian Leisure and Hospitality Group Pty Limited from 30 March 2023 and was dismissed on 19 April 2023. The Fair Work Commission, under Commissioner Bissett, examined whether the dismissal was unfair and whether the Applicant had completed the requisite minimum employment period to be protected under the Act.

The legal issues before the Commission were whether the Applicant had completed the minimum employment period and, if not, whether the application had a reasonable prospect of success. Under the Fair Work Act, the minimum employment period is six months unless the employer is a small business, in which case it is one year. The Commission determined that the Applicant had not served the minimum employment period, which is a prerequisite for an unfair dismissal claim. Additionally, the Commission considered whether the application was frivolous or vexatious, or if it had any reasonable prospect of success.

The Commission found that the Applicant had not completed the minimum employment period and that the application had no reasonable prospect of success. The application was therefore dismissed under section 587(1)(c) of the Fair Work Act. The Commission's decision was based on the absence of evidence from the Applicant to substantiate that the minimum employment period had been completed and the lack of response to multiple communications from the Commission.

The Fair Work Commission dismissed the Applicant's unfair dismissal application as it had no reasonable prospect of success due to the Applicant not having completed the minimum employment period. The Commission also noted that the Applicant had not responded to multiple communications requesting evidence or further information to support the claim.

Yazmin Aliste Birkelbach v Australian Leisure and Hospitality Group Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established