Donna Moresco v Trendy Pads Pty Ltd

[2014] FWC 9390

[2014] FWC 9390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Donna Moresco
v
Trendy Pads Pty Ltd
(U2014/12463)

COMMISSIONER WILSON MELBOURNE, 18 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 11 September 2014, Ms Donna Moresco made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Moresco advised that she commenced employment with Trendy Pads Pty Ltd on 24 February 2014 and that her dismissal took effect on 13 August 2014.

[3] On 12 September 2014, correspondence was sent to Ms Moresco pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Moresco to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 19 September 2014, the Commission made an attempt to contact Ms Moresco, the call was not answered and a voice message could not be left.

[5] On the 9 October 2014 and 21 November 2014, the Commission made an attempt to contact Ms Moresco, the call was not answered and a voice message could not be left.

[6] On the 2 December 2014, Ms Moresco was asked to advise the Commission whether she wished to proceed with her application. The call was terminated due to the use of inappropriate language. On the same date, the Commission sent further correspondence to Ms Moresco allowing a further 14 days in which to reply, after which time the application would be dismissed.

[7] To date, Ms Moresco did not reply to that correspondence.

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

[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] 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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