Jasmine Wiseman v Naartel Enterprises T/A Marcus & Co Cafe

[2020] FWC 4317

[2020] FWC 4317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasmine Wiseman
v
Naartel Enterprises T/A Marcus & Co Cafe
(U2020/10001)

COMMISSIONER BISSETT MELBOURNE, 17 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 22 July 2020 Ms Jasmine Wiseman made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Wiseman advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Naartel Enterprises T/A Marcus & Co Cafe on 15 April 2020 and that her dismissal took effect on 5 July 2020.

[3] On 23 July 2020, the Commission attempted to contact Ms Wiseman on her nominated telephone number. A voicemail message was left requesting that she call the Commission back.

[4] Later that day, the Commission emailed correspondence to Ms Wiseman’s nominated email address advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Wiseman to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Wiseman did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Wiseman’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 5 August 2020 the Commission attempted to contact Ms Wiseman on her nominated telephone number. Ms Wiseman could not be reached. A voicemail message was left requesting that she contact the Commission as a matter of urgency.

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

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Ms Wiseman has not completed the required minimum employment period.

[11] Having regard to the circumstances of this matter I am satisfied that as Ms Wiseman has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, 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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