Emma Bolton v Novo Shoes Group Pty Ltd

[2020] FWC 1117

[2020] FWC 1117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Bolton
v
Novo Shoes Group Pty Ltd
(U2020/874)

COMMISSIONER BISSETT MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 25 January 2020, Ms Emma Bolton made an application for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] In her Form F2 – Unfair Dismissal Application Ms Bolton advised that she commenced employment with Novo Shoes Group Pty Ltd on 11 September 2019 and said that she was unclear as to the date she was notified of her dismissal. The separation certificate attached to Ms Bolton’s application indicates her employment ceased on 7 January 2020.

[3] On 29 January 2020, the Fair Work Commission attempted to telephone Ms Bolton on her nominated telephone number to discuss the information contained in her application. Ms Bolton did not answer the call and a voicemail message was left requesting a return call. On the same day the Commission emailed correspondence to Ms Bolton’s nominated email address advising that on the basis of the information contained in her application she had not served the minimum employment period. The correspondence directed Ms Bolton to file any documents and evidence to support her claim that she had served the minimum employment period and that if she did not contact the Commission within 14 days her application may be dismissed without further notice. The correspondence was also sent to Ms Bolton’s representative, Ms Sylvia Bolton.

[4] On 14 February 2020 the Commission again attempted to contact Ms Bolton by telephone however Ms Bolton could not be reached and a voicemail message was left requesting a return call. The Commission also attempted to telephone Ms Bolton’s representative however the call went unanswered. There was no provision to leave a voicemail message. The Commission also sent an SMS notification to both Ms Bolton and her representative requesting they contact the Commission.

[5] As no response was received from Ms Bolton or her representative the Commission emailed further correspondence to them on 14 February 2020 allowing Ms Bolton a further 7 days in which to reply after which time the application would be dismissed.

[6] On 24 February 2020, the Commission made a final attempt to contact Ms Bolton by telephone. Ms Bolton did not answer the call. A voicemail message was left requesting that she contact the Commission. The Commission also unsuccessfully attempted to contact Ms Bolton’s representative however this was also unsuccessful.

[7] To date, no response has been received by Ms Bolton or her representative.

[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 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] In the circumstances of this matter, I am satisfied Ms Bolton 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 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.

[12] Having regard to the circumstances of this matter, I am satisfied that Ms Bolton has not completed the required minimum employment period under the Act, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

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