Angela Buckley v An Burnett Investments Pty Ltd T/A Waxys Irish Pub

[2017] FWC 4917

[2017] FWC 4917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Buckley
v
AN Burnett Investments Pty Ltd T/A Waxys Irish Pub
(U2017/7903)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 21 July 2017, Ms Angela Buckley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Buckley advised that she commenced employment with AN Burnett Investments Pty Ltd T/A Waxys Irish Pub on 6 March 2017. Ms Buckley said she was notified of her dismissal on 28 June 2017 by the Group Operational Manager and also on 13 July 2017 by the owner of the business, with the dismissal taking effect on each of those respective dates. Ms Buckley noted that on 1 July 2017, she received an email from the owner stating “please wait until I get back, I will see you then and sort this out,” which led her to believe she was still employed at that time.

[3] On 26 July 2017, the Fair Work Commission attempted to telephone Ms Buckley, however there was no answer. On the same day, correspondence was sent to Ms Buckley confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Buckley to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Buckley was advised in the absence of any documents or evidence being received, her application may be dismissed.

[4] On 10 August and 14 August 2017, further attempts to contact Ms Buckley via telephone were made and on each occasion a voicemail was left seeking a return call.

[5] On 28 August 2017, further correspondence was sent to Ms Buckley noting that she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Ms Buckley was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 26 July 2017. Ms Buckley was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] On 7 September 2017, a final attempt to contact Ms Buckley via telephone was made though there was no answer.

[7] To date, Ms Buckley has not responded to the Commission’s correspondence.

[8] 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.

[9] 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.

[10] 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.

[11] The material indicates that Ms Buckley had completed approximately 18 weeks, or less than five months, of employment if 13 July 2017, the latter date she notes as her dismissal taking effect, is accepted as the date her employment was terminated. Despite this issue being raised twice in correspondence to Ms Buckley and there having been four attempts to speak with her to elicit further particulars for her to explain otherwise, Ms Buckley has not provided any further information.

[12] In the circumstances of this matter, I am satisfied Ms Buckley has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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