Hannah Davies v Carsales.com Ltd

[2020] FWC 1815

[2020] FWC 1815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hannah Davies
v
Carsales.com Ltd
(U2020/1676)

COMMISSIONER BISSETT MELBOURNE, 6 APRIL 2020

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

[1] On 16 February 2020, Ms Hannah Davies made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In her Form F2 – Unfair Dismissal Application, Ms Davies advised that she commenced employment with Carsales.com Ltd (Respondent) on 17 November 2019 and that her dismissal took effect on 5 February 2020.

[3] On 21 February 2020 the Commission telephoned Ms Davies to discuss her application. Ms Davies stated that she began working for the Respondent in mid-October 2019 and not on 17 November 2019 as stated in her application. The Commission advised Ms Davies that based on this information she did not meet the minimum employment period of 6 months.

[4] On the same date, the Commission sent email correspondence to Ms Davies’ 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 required Ms Davies to file any documents/evidence to support her claim of having served the minimum employment period within 14 days and to advise whether she wished to proceed with her application. Ms Davies did not respond.

[5] On 3 March 2020 the Commission sent a SMS notification to Ms Davies’ nominated telephone number requesting she contact the Commission. On the same date further correspondence was sent to Ms Davies’ nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why she has not responded to the Commission’s correspondence, her application would be determined based on the material before the Commission..

[6] On 4 March 2020 the Commission again attempted to contact Ms Davies on her nominated telephone number to discuss her application. Ms Davies did not answer and a voicemail message was left requesting a return call.

[7] On 26 March 2020 the Commission made a final attempt to contact Ms Davies on her nominated telephone number. Ms Davies did not answer the call. A voicemail message was left requesting Ms Davies urgently call the Commission.

[8] To date, Ms Davies has not provided the further evidence requested of her.

[9] Section 382 of the FW 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.

[10] 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.

[11] Section 587(1) of the FW 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] In the circumstances of this matter, I am satisfied Ms Davies has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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