Kaltoom Menga v Culture Diverse Family Day Care

[2016] FWC 7016

[2016] FWC 7016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kaltoom Menga
v
Culture Diverse Family Day Care
(U2016/10957)

COMMISSIONER WILSON MELBOURNE, 5 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 2 September 2016, Mrs Kaltoom Menga made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Menga’s application disclosed that she had commenced employment with Culture Diverse Family Day Care on 21 May 2016, and that her dismissal took effect on 17 July 2016.

[3] On 5 September 2016, a phone call was made to Mrs Menga by the Commission registry advising that, based on the information provided in the application, it appeared that she had not met the minimum employment period requirements of the Act. It was also confirmed that her application had been lodged outside of the requisite 21 day period for the filing of such applications. Written correspondence was issued to the Applicant, also on 5 September, advising that the qualifying period to make the application appeared not to have been met, and sought advice from Mrs Menga within 14 days as to whether she wished to proceed with her application. Mrs Menga was also advised if she wished to discontinue her application she was required to sign and return a Form F50 - Notice of Discontinuance.

[4] On 15 September 2016, a further phone call was made to Mrs Menga. The Applicant advised that she would sign the Form F50 and return it to the Commission either by post or email.

[5] On 20 September 2016, another phone call was made to Mrs Menga advising her that the Commission was still awaiting her signed Form F50. Mrs Menga requested another electronic version to be sent to her, indicating that she would then complete it and file accordingly. Further correspondence was sent to Mrs Menga, also on 20 September, allowing a further 14 days in which to reply to the Commission’s correspondence dated 5 September, after which time the application would be dismissed in the absence of advice to the contrary.

[6] To date, Mrs Menga has not filed a Form F50 with the Commission or replied to the aforementioned 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 Mrs Menga 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[11] Consequently, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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