Annalise Maragos v Dwyer Thoroughbred Racing T/A Racehorse Trainer

[2021] FWC 80

[2021] FWC 80

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annalise Maragos
v
Dwyer Thoroughbred Racing T/A Racehorse Trainer
(U2020/16269)

COMMISSIONER BISSETT MELBOURNE, 8 JANUARY 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

[1] On 21 December 2020, Miss Annalise Maragos 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).

[2] The application form filed by Miss Maragos was incomplete in that she did not specify the commencement date of her employment.

[3] On 22 December 2020, the Commission contacted Miss Maragos on her nominated telephone number. The Commission explained that question 1.1 of her Form F2 - unfair dismissal application was not answered and asked when her employment commenced. Miss Maragos stated that she began working for the respondent in February 2018 and that she would confirm this in writing.

[4] On 22 December 2020, Miss Maragos sent an email to the Commission stating that she began working for the respondent in February or March 2018 and departed the business in April 2020. Miss Maragos further stated that she returned to work for the respondent in August or September 2020 and worked until 10 December 2020 when she was dismissed. As such, her employment with the respondent did not appear to be continuous.

[5] Later that day, the Commission emailed correspondence to Miss Maragos’s nominated email address advising Miss Maragos that on the basis of the information provided, she may have not served the minimum employment period. The correspondence directed Miss Maragos 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 Maragos did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Miss Maragos’s nominated telephone number requesting that she contact the Commission.

[6] As the required documentation was not received, on 4 January 2020 the Commission contacted Miss Maragos via her nominated telephone number. The Commission explained that there appeared to be an issue regarding the dates of her employment with the Respondent and whether she meets the minimum employment period. The Commission then asked if she intended to continue with the application. Miss Maragos stated that she was not sure if she wanted to continue. She said that she lodged an unfair dismissal application as she was initially seeking a separation certificate and that she had since received this through Centrelink. Miss Maragos said that she would consider if she wanted to continue and if necessary, respond to the letter she received. The Commission reiterated that the matter was at risk of being dismissed and that she would need to respond to the correspondence as soon as possible if she intended to continue with the application.

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

[8] 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.

[9] In the circumstances of this matter, I am satisfied Miss Maragos has not completed the required minimum employment period and her application has no reasonable prospects of success.

[10] 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.

[11] 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.

[12] Having regard to the circumstances of this matter I am satisfied that as Miss Maragos has not completed the required minimum employment period under the FW Act and the 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR726048>

 1   PR726049