Holly Matthews v Action Auto Group Pty Ltd T/A Gympie Motor Group

[2017] FWC 5834

[2017] FWC 5834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Holly Matthews
v
Action Auto Group Pty Ltd T/A Gympie Motor Group
(U2017/11201)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 19 October 2017, Ms Holly Matthews made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Matthews advised that she commenced employment with Action Auto Group Pty Ltd T/A Gympie Motor Group on 4 September 2017 and that her dismissal took effect on 13 October 2017.

[3] On 20 October 2017, the Fair Work Commission (the Commission) attempted to contact Ms Matthews via telephone, however there was no answer and a voicemail message was left. On the same day, correspondence was sent to Ms Matthews indicating that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence directed Ms Matthews to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Ms Matthews was advised that in the absence of any material being received, her application may be dismissed.

[4] On 30 October 2017, the Commission attempted to contact Ms Matthews via telephone, however this was unsuccessful and a further voicemail message was left requesting that she return the call. Later that day, the Commission sent correspondence to Ms Matthews noting that she had not filed material in support of her claim she had served the minimum employment period. Ms Matthews was given a further seven days to provide an explanation as to why she did not respond to the direction contained in the correspondence of 20 October 2017. Ms Matthews was advised that if there was no response to this correspondence, her application would be determined on the material currently before the Commission.

[5] On 6 November 2017, a final attempt made by the Commission to contact Ms Matthews via telephone was unsuccessful.

[6] To date, Ms Matthews has not responded 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 Matthews has not completed the required minimum employment period and her application has no reasonable prospects of success.

[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] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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