Yun-Jhen Sun v Rugby Farm T/A Rugby Regional Employment Pty

[2021] FWC 4836

[2021] FWC 4836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yun-Jhen Sun
v
Rugby Farm T/A Rugby Regional Employment Pty
(U2021/6011)

COMMISSIONER BISSETT MELBOURNE, 6 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 8 July 2021 Miss Yun-Jhen Sun (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). Miss Sun alleged she had been unfairly dismissed by Rugby Farm T/A Rugby Regional Employment Pty on 24 June 2021.

[2] Miss Sun advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with the Respondent on 8 May 2021 and that her dismissal took effect on 24 June 2021.

[3] On 12 July 2021 the Commission attempted to contact Miss Sun on her nominated telephone number. A voicemail message was left requesting confirmation of the date that Miss Sun commenced employment.

[4] Later that day, the Commission emailed correspondence to Miss Sun’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Miss Sun to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Miss Sun did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to her nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 28 July 2021 the Commission attempted to contact Miss Sun via her nominated telephone number. However, Miss Sun could not be reached. A voicemail message was left requesting that Miss Sun urgently call the Commission to discuss her application.

[6] To date, Miss Sun has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Miss Sun 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 with this decision.

COMMISSIONER

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