Anastasia Patouhas v A.C.E Child Care Centre

[2019] FWC 4345

[2019] FWC 4345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anastasia Patouhas
v
A.C.E Child Care Centre
(U2019/5835)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 27 May 2019, Miss Anastasia Patouhas made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Patouhas advised that she commenced employment with A.C.E Child Care Centre on 17 May 2019 and that she was notified of her dismissal on 22 May 2019, with the dismissal taking effect on the same day.

[3] On 28 May 2019, the Commission telephoned Miss Patouhas to confirm the period of employment recorded in her Form F2 was accurate and she advised it was correct. Miss Patouhas was advised that the period of her employment with A.C.E Child Care Centre did not meet the minimum employment period required under the Act. Email correspondence was then sent to Ms Patouhas confirming the details of the telephone discussion and she was directed to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period. Miss Patouhas was otherwise advised that if she decided to discontinue her application, she must complete a Notice of Discontinuance and return it to the Commission.

[4] On 11 June 2019, an attempt to telephone Miss Patouhas was made, however there was no answer and no opportunity to leave a voicemail message. Final correspondence was then sent to Miss Patouhas via email. The correspondence noted that unless Miss Patouhas contacted the Commission within seven days of the date of the letter and provided an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined on the material currently before the Commission without further reference to her.

[5] On 19 June 2019, a final attempt to contact Miss Patouhas via telephone was made and a voicemail message was left noting the file would be allocated to a Member of the Commission.

[6] To date, the Commission has not received any documentation from Miss Patouhas.

[7] Section 382 of the 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 Act sets out the minimum employment period:

“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 Act provides:

“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.”

[10] Having regard to the circumstances of this matter, I am satisfied that as Miss Patouhas has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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