Heidi Corey v Lyndee Nicholson/Self Managed T/A NDIS Lyndee self employed

[2018] FWC 3635

[2018] FWC 3635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heidi Corey
v
Lyndee Nicholson/Self Managed T/A NDIS - Lyndee self employed
(U2018/4969)

COMMISSIONER BISSETT MELBOURNE, 22 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 14 May 2018, Ms Heidi Corey made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Corey advised that she commenced employment with Lindee Nicholson on 31 January 2018 and that her dismissal took effect on 28 April 2018.

[3] On 14 May 2018, following a telephone call with Ms Corey, correspondence was sent to her confirming that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Corey to file any documents/evidence to support her claim of having served the minimum employment period within 14 days. Ms Corey was advised in the absence of a response, her application may be dismissed. The correspondence was sent to Ms Corey by email and post, however due to an administrative error by the Fair Work Commission (the Commission), the incorrect email address was entered into the Commission’s records and therefore the correspondence was not successfully delivered to Ms Corey’s email.

[4] On 21 May 2018, Ms Nicholson sent correspondence to Ms Corey at the correct email address provided in the application. The Commission’s records were updated with this email address.

[5] On 25 May 2018, a telephone call was made to Ms Corey and a message advised the phone was disconnected. On the same day, further correspondence was sent to Ms Corey by email and post enquiring whether she would like to proceed with her application, and attaching the correspondence previously sent to her on 14 May 2018.

[6] On 4 June 2018, a telephone call was made to Ms Corey and a message advised the phone was disconnected. On the same day, final correspondence was sent to Ms Corey which allowed a further seven days in which to provide an acceptable explanation of why she did not respond to the direction contained in the first piece of correspondence.

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

[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] In the circumstances of this matter, I am satisfied Ms Corey 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 Act. An Order to this effect will be issued shortly.

COMMISSIONER

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