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Judgment (22 paragraphs)
[1]
Kristy Flynn v Convenience Holdings Pty Ltd [2023] FWC 2681 (16 October 2023)
[3]
s.394 - Unfair dismissal
[4]
Application for relief from unfair dismissal - minimum employment period - dismissal under s.587 at the Commission's initiative.
[5]
- [1] On 18 August 2023 Kristy Flynn (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).
[6]
- [2] The Applicant advised in the Form F2 Unfair Dismissal Application (Form F2) that they commenced employment with Convenience Holdings Pty Ltd on 2 June 2023 and that their dismissal took effect on 16 August 2023.
[7]
- [3] On 23 August 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 the Applicant contact the Commission to discuss their matter. The voicemail advised the Applicant that they had not served the minimum employment period and provided the telephone number for the Commission helpline.
[8]
- [4] Later that day the Commission sent correspondence to the Applicant's nominated email address advising them 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 or other 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.
[9]
- [5] As the required documentation was not received, on 6 September 2023 the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached and there was no facility to leave a voicemail.
[10]
- [6] To date the Applicant has not replied to the Commission's correspondence.
[11]
- [7] 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.
[12]
- [8] Section 383 of the FW Act sets out the minimum employment period as follows:
[13]
(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:
[14]
(i) the time when the person is given notice of the dismissal;
[15]
(b) if the employer is a small business employer - one year ending at that time.
[16]
- [9] Section 587(1) of the FW Act provides as follows:
[17]
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
[18]
(a) the application is not made in accordance with this Act; or
[19]
(c) the application has no reasonable prospect of success.
[20]
- [10] As the Applicant has not completed the required minimum employment period the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
[21]
[22]
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