Lillian Hoffman v Vamjam Pty Ltd atf Beaufort Family Trust T/A Home Instead Senior Care East Brisbane

[2019] FWC 3561

[2019] FWC 3561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lillian Hoffman
v
VAMJAM Pty Ltd atf Beaufort Family Trust T/A Home Instead Senior Care – East Brisbane
(U2019/4364)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 MAY 2019

Application for an unfair dismissal remedy.

[1] On 16 April 2019, Ms Lillian Hoffman 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 (Form F2), Ms Hoffman advised that she commenced employment with VAMJAM Pty Ltd atf Beaufort Family Trust T/A Home Instead Senior Care – East Brisbane (VAMJAM) on 12 March 2019 and that she was notified of her dismissal on 5 April 2019, with the dismissal taking effect on the same day.

[3] On 17 April 2019, the Commission sent email correspondence to Ms Hoffman advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Ms Hoffman to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] On 23 April 2019, Ms Hoffman emailed the Commission:

“In response to your letter dated 17th April, 2019 and your outcome to my complaint

Accordingly, based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the Fair Work Commission (the Commission) has no jurisdiction to deal with your application.

I now ask where I can take my complaint to have this matter addressed as I am confident an injustice has been done to me.”

[5] Later the same day, the Commission telephoned Ms Hoffman. The Commission’s records indicate that the minimum employment period requirements under the Act as well as a suggestion for her to seek legal advice were discussed with Ms Hoffman. Following the telephone call, the Commission emailed Ms Hoffman the contact details for the Fair Work Ombudsman and two free legal advice providers.

[6] On 10 May 2019, the Commission telephoned Ms Hoffman and again discussed the minimum employment period requirements under the Act. Ms Hoffman contended that despite having only worked one shift with VAMJAM, she believed what had happened to her was unfair. The Commission advised Ms Hoffman that a final letter will be sent to her in relation to the minimum employment period requirements, as the issue was still required to be addressed. The Commission further advised Ms Hoffman that a Commission Member may issue a decision dismissing her application which would be published on the website. The Commission’s records indicate that Ms Hoffman acknowledged this but indicated that she wished to pursue her matter and would seek legal advice.

[7] Following the telephone conversation, the Commission sent final correspondence to Ms Hoffman advising that she had not filed any documentation in compliance with the direction contained in the correspondence dated 17 April 2019. The correspondence further stated that unless she contacted the Commission within seven days, her application would be determined on the material currently before the Commission.

[8] On 14 May 2019, Ms Hoffman emailed a letter to the Commission which stated:

“Although I did not work within the six months timeframe to meet your criteria or the qualifying period of employment I feel this matter should be addressed to ensure proper protocol is in place for something as harsh, unfair & improper treatment that should not have occurred to me.”

[9] Ms Hoffman’s letter then continues to provide a chronology of events commencing from her interview on 19 February 2019 to her termination on 5 April 2019. She also described the effects the dismissal have had on her circumstances and set out the outcome she sought from prosecuting her application.

[10] 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.

[11] 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.”

[12] 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.”

[13] I have had regard to the material filed by Ms Hoffman and the circumstances of this matter, and am satisfied that as Ms Hoffman 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 Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708608>