Justine Bond v The Network PS Pty Ltd T/A the Network

[2018] FWC 874

[2018] FWC 874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justine Bond
v
The Network PS Pty Ltd T/A The Network
(U2018/476)

DEPUTY PRESIDENT DEAN SYDNEY, 9 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 15 January 2018, Ms Justine Bond made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Bond’s application states that she commenced employment with The Network PS Pty Ltd T/A The Network (the respondent) on 17 July 2017 and that her dismissal took effect on 3 January 2018.

[3] On 18 January 2018, correspondence was sent to Ms Bond indicating that, based on the information contained in her application, it appeared she had not served the minimum employment period. The correspondence required Ms Bond to file a statement within seven days to support her claim of having served the minimum employment period. Ms Bond was advised that if there was no response her application would be determined on the material currently before the Commission.

[4] On 24 January 2018, the applicant responded:

“ ----

I understand that I am unable to pursue Unfair Dismissal due to the time employed however I was lodging for General Protection Dismissal which I believe I am eligible. Could you please continue to pursue the matter on my behalf under the General Protection Dismissal?

----“

[5] On 25 January 2018, the Commission wrote to the applicant:

“You have made an application for unfair dismissal, rather than a General Protections claim.

One option is that you can discontinue your unfair dismissal matter and commence a new General Protection application however you will be outside the required timeframe to lodge. If you choose to do this you must lodge a fresh application with the Registry.

You should consider obtaining advice, perhaps from your local Community Legal Centre. 

Please confirm within 7 days whether you wish to withdraw your unfair dismissal claim.”

[6] On 2 February 2018, correspondence was sent to Ms Bond to follow up on the request that she advise her intention as to withdrawing her application. Ms Bond was given a further period of four days to respond. Ms Bond was advised in the absence of any response, her application may be dismissed.

[7] On 2 and 9 February 2018, final attempts to contact Ms Bond by telephone were made.

[8] To date, Ms Bond has not responded to the Commission’s correspondence.

[9] 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.

[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] In the circumstances of this matter, I am satisfied Ms Bond 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.

[13] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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