Yi Ying Tsai v Fresh Four Pty Ltd
[2024] FWC 1627
•31 JULY 2024
| [2024] FWC 1627 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yi Ying Tsai
v
Fresh Four Pty Ltd
(U2024/5142)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 31 JULY 2024 |
Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 6 May 2024, Ms Yi Ying Tsai made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).
Ms Tsai advised in her Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with Fresh Four Pty Ltd (the Respondent) on 24 October 2023, and she was notified of her dismissal on 17 April 2024.
On 9 May 2024, the Commission attempted to contact Ms Tsai on her nominated telephone number. A voicemail message was left to advise Ms Tsai that on the basis of the information provided in the Form F2, it appeared she had not served the minimum employment period and that an email with further details would be sent.
Later that day, the Commission emailed correspondence to Ms Tsai’s nominated email address advising that, on the basis of the information provided in the Form F2, it seemed she had not served the minimum employment period. The correspondence directed Ms Tsai to file any documents/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, her application may be dismissed without further notice. An SMS notification was also sent to Ms Tsai’s nominated telephone number requesting that she contact the Commission.
On 10 May 2024, Ms Tsai sent an email to the Commission to advise she believed she had met the Minimum Employment Period as her commencement date was 24 October 2023 and the company termination letter indicated she would be paid one week of notice. This email also shared a screenshot from a Fair Work Ombudsman webpage regarding ending employment, notice and final pay.
Later that day, the Commission emailed Ms Tsai outlining that the minimum employment period was calculated from the date of commencement to the date the employee was notified of their dismissal. That email also shared a link to the Commission’s website relating to how to calculate the minimum period of employment.
Ms Tsai sent further email correspondence on 10 May 2024. In this email, Ms Tsai advised she had not been paid her final pay, and asked if her matter would still proceed. The Commission sent a further email in reply cautioning that her matter was likely to be dismissed because the Minimum Employment Period did not appear to have been met.
As no documentation was received, on 28 May 2024, the Commission attempted to contact Ms Tsai on her nominated telephone number. Ms Tsai could not be reached. A voicemail message was left requesting that she urgently contact the Commission.
To date Ms Tsai has not replied to the Commission’s correspondence.
Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied Ms Tsai has not completed the required minimum employment period.
Section 383 of the 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 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 material before the Commission indicates Ms Tsai has not completed the required minimum employment period under the Act, I am persuaded the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the Act. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR776283.
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