Clarissa Verde v Uber Eats T/A Uber Australia Pty Ltd

[2020] FWC 5717

[2020] FWC 5717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clarissa Verde
v
Uber Eats T/A Uber Australia Pty Ltd
(U2020/12946)

COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 28 September 2020 Mrs Clarissa Verde 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] Mrs Verde advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Uber Eats T/A Uber Australia Pty Ltd on 18 April 2020 and that her dismissal took effect on 21 September 2020.

[3] On 29 September 2020 the Commission attempted to contact Mrs Verde on her nominated telephone number to discuss her application. The Commission was unable to leave a voicemail message as the option was not provided.

[4] Later that day, the Commission emailed correspondence to Mrs Verde’s nominated email address advising Mrs Verde that, based on the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Verde to file any documents/evidence to demonstrate she had served the required minimum employment period. That correspondence also warned that if Mrs Verde did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Mrs Verde’s nominated telephone number, requesting that she contact the Commission.

[5] On 29 September 2020 the Commission received correspondence from Mrs Verde stating the following ‘Hello. Thanks for the email. I have a little difficulty with English and I have this problem with Uber. A friend commented on your excellent work and I thought about trying to help you. Because they just blocked my account and don’t give me a solution, but I understand if they can’t. I don’t know what to do but that’s okay.’ The Applicant did not address anything regarding the minimum employment period.

[6] As the required documentation was not received, on 13 October 2020 the Commission again attempted to contact Mrs Verde via her nominated telephone number. However, Mrs Verde could not be reached. A voicemail message was unable to be left as this option was not provided.

[7] 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 specified.

[8] In the circumstances of this matter, I am satisfied Mrs Verde has not completed the required minimum employment period and her application therefore has no reasonable prospects of success.

[9] 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.

[10] 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 prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a)  on its own initiative; or

(b)  on application.

[11] Having regard to the circumstances of this matter I am satisfied that as Mrs Verde has not completed the required minimum employment period under the FW Act, her 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

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