Feray Tastepe v Alpha Flight Services

[2017] FWC 2269

[2017] FWC 2269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Feray Tastepe
v
Alpha Flight Services
(U2017/2719)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 12 March 2017, Ms Feray Tastepe made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Tastepe advised that she commenced employment with Alpha Flight Services on 21 September 2016 and was notified of her dismissal on 9 March 2017, with it taking effect that day.

[3] On 14 March 2017, a telephone call was made to Ms Tastepe, however, there was no answer and no voicemail was able to be left. On the same day, correspondence was sent to Ms Tastepe confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Ms Tastepe to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Tastepe was advised in the absence of any material being received, her application may be dismissed.

[4] On 24 March 2017, a further attempt to telephone Ms Tastepe was made and a voicemail was left seeking a return call.

[5] On 29 March 2017, a final attempt to contact Ms Tastepe via telephone was made which was unsuccessful. Correspondence was sent to Ms Tastepe noting she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Ms Tastepe was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 14 March 2017. Ms Tastepe was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] To date, Ms Tastepe has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Ms Tastepe has not completed the required minimum employment period.

[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] Based on the material before me, I am not satisfied Ms Tastepe has completed the required minimum employment period and therefore, I consider 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 with this Decision

DEPUTY PRESIDENT

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