Jewel Paul v Bluecross Residential and Commercial Services

[2020] FWC 1759

[2020] FWC 1759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jewel Paul
v
Bluecross Residential and Commercial Services
(U2020/1663)

COMMISSIONER BISSETT MELBOURNE, 1 APRIL 2020

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

[1] On 14 February 2020, Mr Jewel Paul made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] In his Form F2 – Unfair Dismissal Application, Mr Paul advised that he commenced employment with Bluecross Residential and Commercial Services on 6 August 2019 and that his dismissal took effect on 4 February 2020.

[3] On 17 February 2020, the Commission twice attempted to telephone Mr Paul on his nominated telephone number to discuss his application. Mr Paul did not answer the call and there was no provision to leave a voicemail message. An SMS message was then sent to Mr Paul requesting that he contact the Commission.

[4] Later the same day the Commission sent email correspondence to Mr Paul’s nominated email address advising that based on the information contained in his application, he had not served the minimum employment period. The correspondence required Mr Paul to file any documents/evidence to support his claim of having served the minimum employment period within 14 days and to advise whether he wished to proceed with his application.

[5] On 21 February 2020, Mr Paul responded as follows:

I have got your email still my problem is not solved yet. I have got it that my probation period was not finished but what about my payments? they did not pay my all annual leave and my one week payment in lieu of notice... I already submitted all documents to you  previously. after that if you need any documents please let me know. thanks a lot.

[6] On 24 February 2020 the Commission replied to Mr Paul responded as follows:

Thank you for your enquiry to the Fair Work Commission regarding the underpayment of wages.

For information and advice about workplace rights and obligations you will need to contact the Fair Work Ombudsman. The Fair Work Ombudsman offers advice on award coverage, wages, entitlements and conditions of employment. It can also enforce compliance with Australia's workplace laws.

You will need to contact the Fair Work Ombudsman directly on 13 13 94 or via their website. We have not forwarded your enquiry as the Fair Work Ombudsman is a separate organisation to the Fair Work Commission.

Kindly inform us whether you will be discontinuing the Unfair Dismissal application as you have not met the Minimum Employment Period. You have 14 days from the date of issue of the correspondence attached, otherwise your application may be dismissed without further notice.

[7] On 3 March 2020, the Commission again sent email correspondence Mr Paul nominated email address requesting further evidence that he had served the minimum employment period. Mr Paul was advised that unless contact was made with the Commission within 7 days with the requested information, his application would be determined based on the material before the Commission. This was followed by an SMS to Mr Paul requesting that he contact the Commission to discuss his application.

[8] On 17 March 2020, the Commission made a final attempt to contact Mr Paul on his nominated telephone number to discuss his application. Mr Paul did not answer the call and there was no provision to leave a voicemail message.

[9] To date, Mr Paul has not provided the further evidence requested of him.

[10] 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.

[11] 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.

[12] 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.

[13] In the circumstances of this matter, I am satisfied Mr Paul has not completed the required minimum employment period and his 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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