Dennile McKellar v Flourish Australia T/A Richmondpra/Flourish Australia

[2018] FWC 4127

[2018] FWC 4127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennile McKellar
v
Flourish Australia T/A Richmondpra/Flourish Australia
(U2018/5424)

COMMISSIONER BISSETT SYDNEY, 12 JULY 2018

Application for an unfair dismissal remedy.

[1] On 25 May 2018, Miss Dennile McKellar made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss McKellar advised that she commenced employment with “Flourish Australia T/A Richmondpra/Flourish Australia” (direct quote) on 14 November 2017 and that her dismissal took effect on 9 May 2018.

[3] On 29 May 2018, the Fair Work Commission telephoned Miss McKellar and discussed with her the minimum employment period requirement under the Act. Miss McKellar advised she intended to withdraw her application.

[4] On 7 June 2018, email correspondence was sent to Miss McKellar confirming that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss McKellar to file any documents/evidence to support her claim of having served the minimum employment period within 14 days. Additionally, Miss McKellar was advised if she wished to discontinue her application, she should complete and return the attached Form F50 – Notice of Discontinuance, send an email or advise the Commission via telephone that she no longer wished to pursue her matter. Miss McKellar was advised in the absence of a response, her application may be dismissed.

[5] On 7 and 8 June 2018, attempts were made by the Commission to telephone Miss McKellar, however these were unsuccessful.

[6] On 20 June 2018, a further attempt was made to telephone Miss McKellar and the Commission was advised she was not available.

[7] On 25 June 2018, final correspondence was sent to Miss McKellar which allowed a further seven days in which to provide an acceptable explanation of why she did not respond to the direction contained in the first piece of correspondence.

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

[9] 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.

[10] 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.

[11] 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.

[12] In the circumstances of this matter, I am satisfied Miss McKellar has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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