Kiara Arnold v Chameleon Co Pty Ltd T/A Crave Cafe

[2020] FWC 1135

[2020] FWC 1135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kiara Arnold
v
Chameleon Co Pty Ltd T/A Crave Cafe
(U2020/437)

COMMISSIONER BISSETT MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 13 January 2020 Ms Kiara Arnold made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Arnold advised that she commenced employment with Chameleon Co Pty Ltd T/A Crave Cafe in July 2019 and she was notified of her dismissal on 28 December 2019.

[3] 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.

[4] Section 383 of the FW 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.

[5] On 14 January 2020 the Commission emailed correspondence to Ms Arnold advising that on the basis of the information contained in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Arnold to file any documents and evidence to support her claim that she had served the minimum employment period and that if Ms Arnold did not contact the Commission within 14 days, her application may be dismissed without further notice.

[6] Later that day the Commission contacted Ms Arnold on her nominated telephone number to enquire about the minimum employment period. Ms Arnold advised the Commission that she was unable to take the phone call at that time and requested a return call in 15 minutes.

[7] The Commission attempted to telephone Ms Arnold later that day but she did not answer the call. A voicemail message was left requesting that Ms Arnold return the Commission’s call.

[8] On 11 February 2020 the Commission emailed further correspondence to Ms Arnold again advising that based on the information she had provided in her Form F2 it appeared that the Commission has no jurisdiction to deal with her application as she had not met the minimum employment period. That correspondence noted that the Commission had not received any documentation from Ms Arnold and had not been able to successfully contact her. That correspondence advised that unless Ms Arnold contacted the Commission within 7 days and provided an explanation of why she did not respond to the direction in the first correspondence, her application would be determined on the material currently before the Commission without further reference to her.

[9] Later that day the Commission attempted to contact Ms Arnold on her nominated telephone number. The call was not answered and there was no option to leave a voicemail message.

[10] To date Ms Arnold has not replied to the Commission’s correspondence.

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

[12] Section 587(1) of the FW 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.

[13] Having regard to the circumstances of this matter, I am satisfied that as Ms Arnold has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR717170>

 1   PR717171.