Carla Ridolfi v The Procare Group Pty Ltd T/A Procare Injury Management

[2013] FWC 2757

[2013] FWC 2757

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carla Ridolfi
v
The Procare Group Pty Ltd T/A Procare Injury Management
(U2012/10224)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 6 MAY 2013

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - application dismissed - application for costs - cost application withdrawn.

[1] On 9 November 2012, Ms C. Ridolfi (the Applicant) sought an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made against her former employer The Procare Group Pty Ltd (the Respondent).

[2] The Respondent raised a jurisdictional objection in regard to whether the Applicant had served “the minimum employment period” of 6 months as required by s.382 of the Act for protection from unfair dismissal.

[3] The hearing of the jurisdictional objection was listed for 3 May 2013. On 25 April 2013, the Applicant wrote to the Fair Work Commission (the Commission) advising that she was not able to attend on the hearing date.

[4] On 26 April 2013, my Associate wrote to the Applicant explaining that she should seek a formal adjournment and that if such application was not made or not successful, the hearing of the jurisdictional objection would proceed as listed and on the basis of the written submissions and materials filed with the Commission.

[5] On 1 May 2013, the Applicant responded to my chambers and confirmed that she would not be attending the hearing set down for 3 May 2013. The email from the Applicant stated:

“Thank you for your email.

Please proceed how you see fit. I will be unable to attend.

Kind regards

Carla Ridolfi.”

[6] On 3 May 2013, the matter was called on for hearing. Mr J. Colgan and Ms. C. Young appeared as representatives of the Respondent. The Applicant did not attend. Accordingly, the hearing proceeded on the basis of the written material before the Commission.

[7] The Respondent’s submissions stated that the Applicant commenced employment on 7 May 2012 and was notified of her dismissal on 30 October 2012. The dismissal also took effect on 30 October 2012.

[8] The application filed by the Applicant to commence these proceeding and the dates in the Applicant’s submissions also evidenced that she commenced employment on 7 May 2012 and was dismissed on 30 October 2012.

[9] Having examined the written materials filed by both parties, I have decided to dismiss the application for an unfair dismissal remedy on the basis that the Applicant was not employed for the minimum period of 6 months and therefore did not meet the requirements for protection from unfair dismissal under ss. 382 and 383 of the Act.

[10] It is noted that the Respondent in its written submissions advised that it would be seeking an order for costs against the Applicant. At the conclusion of the hearing of the jurisdictional objection the representatives of the Respondent advised that it was no longer pursuing the application for costs.

[11] The application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Colgan and Ms C. Young as representatives of The Procare Group Pty Ltd.

Hearing details:

2013.
Sydney, 3 May.

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