Haley-Jean Plumb v Belinda Smith

[2020] FWC 134

[2020] FWC 134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Haley-Jean Plumb
v
Belinda Smith
(U2019/13335)

COMMISSIONER BISSETT MELBOURNE, 15 JANUARY 2020

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

[1] On 29 November 2019, Ms Haley-Jean Plumb made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Plumb advised that she commenced employment with Belinda Smith on 27 May 2019 and that her dismissal took effect on 22 November 2019.

[3] On 2 December 2019 following a telephone call with Ms Plumb, correspondence was emailed to Ms Plumb’s nominated email address confirming that on the basis of the information contained in her application, she had not served the minimum employment period. The correspondence required Ms Plumb to file any documents/evidence to support her claim of having served the minimum employment period within 14 days. The correspondence also advised Ms Plumb that the payment waiver application form lodged with her application was incomplete. Ms Plumb was requested to resend a complete payment waiver application form. The correspondence also noted that in the absence of a response her application may be dismissed.

[4] As no response was received from Ms Plumb, on 13 December 2019 the Commission sent further correspondence to her nominated email address advising that on the basis of the information contained in her application it did not appear she had served the minimum employment period required by the FW Act. Ms Plumb was directed to provide any documents/evidence to support her claim of having served the minimum employment period. Ms Plumb was also advised that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. Ms Plumb was advised that in the absence of a response her application may be dismissed. An email was later sent to Ms Plumb attaching a copy of the fee waiver form to the correspondence.

[5] On 17 December 2019 final correspondence was sent to Ms Plumb’s nominated email address advising that unless contact was made with the Commission within seven days with an acceptable explanation as to why she has not responded to the direction contained in the first email, her application would be determined based on the material before the Commission.

[6] On 3 January 2020 the Commission made a final attempt contact Ms Plumb on her nominated mobile telephone number. Ms Plumb did not answer the call and a voicemail was left requesting a return the call. Ms Plumb was also advised that the matter may be dismissed if no fee waiver form is provided or payment is not made.

[7] To date, Ms Plumb has not responded to the Commission’s correspondence and payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[8] Section 395 of the FW Act which deals with application fees provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[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 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.

[11] Having regard to the circumstances of this matter, I am satisfied that as Ms Plumb has not completed the required minimum employment period, her application has no reasonable prospects of success.

[12] Further, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the Application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(c) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR715831>

 1   PR715910.