Kaylyn Elliott v Bittn Pest Control T/A Royden Group Holdings

[2018] FWC 6509

[2018] FWC 6509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaylyn Elliott
v
Bittn Pest Control T/A Royden Group Holdings
(U2018/7765)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 27 July 2018, Ms Kaylyn Elliott made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application, Ms Elliott advised that she commenced employment with Bittn Pest Control T/A Royden Group Holdings on 26 February 2018 and that her dismissal took effect on 26 July 2018.

[3] On 30 July 2018, the Commission telephoned Ms Elliott who confirmed the dates of her employment. The minimum employment period requirement under the Act was discussed with Ms Elliott who advised she would look into the matter and advise the Commission of her intentions. Following the phone call, email correspondence was sent to Ms Elliott which confirmed that her application indicated she had not been employed for the minimum employment period required under the Act. Ms Elliott was directed to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period. It was further noted that the application fee had not been paid. Ms Elliott was advised to make payment or otherwise apply to have the fee waived within 14 days.

[4] As there was no contact or material received from Ms Elliott, on 19 September 2018 a further telephone call was made to her. While the staff member was speaking with Ms Elliott it appeared the call was terminated. Further correspondence was then sent to Ms Elliott via email which advised unless advice was received by the Commission within seven days that she wished to proceed with her application, her matter would be dismissed.

[5] On 4 October 2018, final correspondence was sent to Ms Elliott who was given seven days to provide an explanation of why she did not respond to the direction contained in the first letter. Ms Elliott was advised her application would otherwise be determined on the material currently before the Commission without further reference to her.

[6] To date, Ms Elliott has not responded to the Commission’s 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] Section 395 of the Act, which deals with application fees, provides:

“395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[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.”

[11] Having regard to the circumstances of this matter, 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. Further, I am satisfied Ms Elliott has not completed the required minimum employment period and her application has no reasonable prospects of success. 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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