Lana Jane Standen v The Coffee Club Kawana T/A Raymar Enterprises Pty Ltd

[2020] FWC 4165

[2020] FWC 4165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lana Jane Standen
v
The Coffee Club Kawana T/A Raymar Enterprises Pty Ltd
(U2020/9813)

COMMISSIONER BISSETT MELBOURNE, 10 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 19 July 2020, Ms Lana Jane Standen made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Standen advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with The Coffee Club Kawana T/A Raymar Enterprises Pty Ltd on 10 February 2020 and that her dismissal took effect on 12 July 2020.

[3] On 20 July 2020, the Commission attempted to contact Ms Standen on her nominated telephone number to discuss the fact that she did not appear to meet the minimum employment period, however she did not answer and there was no option to leave a voice message.

[4] Later that day, the Commission emailed correspondence to Ms Standen’s nominated email address advising Ms Standen that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Standen to file any documents/evidence to support her claim that they had served the required minimum employment period. That correspondence also warned that if Ms Standen did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Standen’s nominated telephone number, requesting that she contact the Commission.

[5] On 20 July 2020, the applicant emailed the Commission a copy of a notice of discontinuance form and a waiver form. The Commission then attempted to contact Ms Standen to clarify her intentions as there appeared to be some confusion, however she did not answer and there was no option to leave a voice message. As Ms Standen could not be reached via telephone the Commission sent her an email asking her if she wanted to discontinue her application. The applicant replied explaining that she was confused when she sent both forms to the Commission. The Commission responded and asked her again if she wanted to discontinue the application, but she did not clarify if she wanted to discontinue.

[6] On 20 July 2020, the Commission explained by email to Ms Standen that she could provide evidence if she believed she met the minimum employment period. Ms Standen responded by providing a payslip for the period 27 January 2020 to 9 February 2020. Regardless, if Ms Standen was suggesting that she was employed from 27 January 2020 to 12 July 2020 she still did not appear to meet the minimum employment period. Due to the applicant’s confusion the Commission then responded and asked her to contact the Commission via telephone to discuss the issues with her application. The applicant did not reply to this correspondence.

[7] As no relevant documentation was received, on 4 August 2020 the Commission attempted to contact Ms Standen via her nominated telephone number. However, Ms Standen could not be reached. A voicemail message was left advising that the matter was at risk of being dismissed as she did not appear to meet the minimum employment period. Ms Standen was advised to contact the Commission to discuss the matter further.

[8] Despite the fact that Ms Standen responded to the Commission’s correspondence her intentions have not been made clear and she has not responded to the Commissions attempts to clarify her intentions.

[9] 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.

[10] 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.

[11] 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.

[12] In the circumstances of this matter, I am satisfied Ms Standen has not completed the required minimum employment period.. I am therefore satisfied that the application has no reasonable prospect of success. As such, I have determined to dismiss the application under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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