Carmelina Clements-Pirrottina

[2018] FWC 4398

[2018] FWC 4398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carmelina Clements-Pirrottina
(U2018/6159)

COMMISSIONER BISSETT MELBOURNE, 27 JULY 2018

Application for an unfair dismissal remedy.

[1] On 14 June 2018, Ms Carmelina Clements-Pirrottina made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application form filed by Ms Clements-Pirrottina in the Fair Work Commission (the Commission) was incomplete because she did not provide any details for the Respondent. Further, Ms Clements-Pirrottina advised that she commenced employment with the Respondent on 29 January 2018 and that her dismissal took effect on 21 May 2018.

[3] On 15 June 2018, attempts to contact Ms Clements-Pirrottina via telephone were made to discuss her application, however they were unsuccessful and two voicemails were left.

[4] On the same day, correspondence was emailed to Ms Clements-Pirrottina, which noted that the application was incomplete as no Respondent was listed on the application. The correspondence also enclosed Ms Clements-Pirrottina’s application form and advised that if she wished to proceed, she was required to complete the application by filling in the details of the Respondent in the relevant section and return this to the Commission.

[5] Following this, further correspondence was emailed to Ms Clements-Pirrottina advising that on the basis of the information contained in the application, she had not been employed for the minimum employment period required under the Act. The correspondence directed Ms Clements-Pirrottina to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period.

[6] On 2 July 2018, correspondence was emailed to Ms Clements-Pirrottina in relation to the overdue material required to support her claim that she had served the minimum employment period. The correspondence allowed Ms Clements-Pirrottina seven days to contact the Commission to provide an acceptable explanation as to why she did not respond to the Commission’s direction. On the same day, the Commission made a final attempt to telephone Ms Clements-Pirrottina regarding her application. This was unsuccessful and a voicemail was left.

[7] To date, Ms Clements-Pirrottina has not completed her application by providing details for the Respondent, nor has she provided material in relation to the minimum employment period requirement under the Act.

[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] Having regard to the circumstances of this matter, I am satisfied that as Ms Clements-Pirrottina has not completed the required minimum employment period, her application has no reasonable prospects of success. Further, I am satisfied that as the application did not contain the details of the Respondent, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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