Cheryl Morley v Westernline Hotel Oakey T/A Jeffstan Holdings Pty Ltd

[2016] FWC 852

[2016] FWC 852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryl Morley
v
Westernline Hotel Oakey T/A Jeffstan Holdings Pty Ltd
(U2015/15736)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 22 December 2015, Ms Cheryl Morley made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Morley advised that she commenced employment with Westernline Hotel Oakey on 2 November 2015 and that her dismissal took effect on 11 December 2015.

[3] Ms Morley also did not pay the required fee.

[4] On 23 December 2015 and 7 January 2016, Ms Morley was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application and to confirm with the Commission her employment dates.

[5] The correspondence required Ms Morley to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[6] 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.

[7] 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.

[8] Section 395, which deals with application fees, provides:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[9] No response was received from Ms Morley and payment of the required fee has not been made.

[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 the application was not accompanied by the fee prescribed by the Act and I am satisfied Ms Morley has not completed the required minimum employment period.

[12] The application was not made in accordance with the Act. As such, the application is dismissed pursuant to sections 587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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