Hannah Daniels v La Pizzeria T/A La Pizzeria Brighton

[2019] FWC 4037

[2019] FWC 4037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hannah Daniels
v
La Pizzeria T/A La Pizzeria Brighton
(U2019/4200)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 13 April 2019, Miss Hannah Daniels made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Daniels advised that she commenced employment with La Pizzeria T/A Le Pizzeria Brighton on 14 March 2019 and that she was notified of her dismissal on 9 April 2019, with the dismissal taking effect on the same day.

[3] On 15 April 2019, the Commission attempted to contact Miss Daniels via telephone; this was unsuccessful and a voicemail message was left seeking a return call. Email correspondence was then sent to Miss Daniels on the same day advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Miss Daniels to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] As no material had been received from Miss Daniels, on 13 May 2019 another attempt to contact her via telephone was made. This was unsuccessful and a voicemail message was left seeking a return call. Final correspondence was then sent to Miss Daniels via email. The correspondence noted that unless Miss Daniels contacted the Commission within seven days of the date of the letter and provided an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined on the material currently before the Commission without further reference to her.

[5] On 21 May 2019, Miss Daniels was advised via telephone call with the Commission to file in the Commission any documents or evidence to support her claim that she had served the minimum employment period as soon as possible.

[6] A further voicemail message was left for Miss Daniels on 29 May 2019 seeking a return call as no material had been received from her.

[7] To date, the Commission has not received any documentation from Miss Daniels.

[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] 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] Having regard to the circumstances of this matter, I am satisfied that as Miss Daniels has not completed the required minimum employment period, 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 to this effect will be issued shortly.

DEPUTY PRESIDENT

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