Jessica Dunbar v Ocean Beach T/A Nowra's Australian Hotel

[2018] FWC 2022

[2018] FWC 2022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Dunbar
v
Ocean Beach T/A Nowra’s Australian Hotel
(U2018/1636)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 APRIL 2018

Application for relief from unfair dismissal – Application dismissed.

[1] On 19 February 2018, Miss Jessica Dunbar made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Dunbar did not pay the required fee.

[3] In her Form F2 – Unfair dismissal application, Miss Dunbar advised that she commenced employment with Ocean Beach T/A Nowra's Australian Hotel on 28 August 2017 and that she was notified of her dismissal 29 January 2018, with it taking effect on the same day.

[4] On 20 February 2018, Fair Work Commission (the Commission) attempted to contact Miss Dunbar via telephone to discuss her application. She did not answer and nor did she return the call. On the same day, correspondence was sent to Miss Dunbar’s nominated email address advising that on the basis of the information contained in the application, she had not served the minimum employment period required by the Act. Miss Dunbar was directed to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days.

[5] On 8 March 2018, further correspondence was sent to Miss Dunbar by email which advised that unless she contacted the Commission within 7 days with an explanation as to why she had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[6] On 21 March 2018 and 26 March 2018, the Commission made further attempts to contact Miss Dunbar by telephone to discuss her application. She did not answer and nor did she return the Commission’s calls.

[7] As no response had been received, further email correspondence was sent to Miss Dunbar on 26 March 2018, requesting that she contact the Commission as soon as possible. This email stated that on the information provided she had no served the minimum employment period and if she did not discontinue her application, her matter would be allocated a Member of the Commission who may make a decision to dismiss her application.

[8] On 4 April 2018 and 6 April 2018 the Commission made final attempts to contact Miss Dunbar by telephone. She did not answer and she did not return the Commission’s calls.

[9] To date, Miss Dunbar has not responded to the Commission’s correspondence.

[10] 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.

[11] 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.

[12] Having regard to the circumstances of this matter, I am satisfied that as Miss Dunbar has not completed the required minimum employment period, that her application has no reasonable prospects of success. Further, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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