Maria Harris v Top of the Hill Security

[2018] FWC 2023

[2018] FWC 2023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Harris
v
Top of The Hill Security
(U2018/2548)

DEPUTY PRESIDENT CLANCY MELBOURNE, 9 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 13 March 2018, Ms Maria Harris made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair dismissal application, Ms Harris advised that she had commenced employment with Top of The Hill Security on 17 November 2017, with the dismissal taking effect “sometime in January or early February.” Ms Harris said the last day she worked was on 12 January 2018.

[3] On 13 March 2018, the Fair Work Commission telephoned Ms Harris and confirmed with her that the period of employment recorded on the Form F2 was accurate. Ms Harris was then advised that her period of employment with Top of The Hill Security did not meet the minimum employment period required under the Act. Ms Harris was advised correspondence would be sent to her regarding the minimum employment period and that the correspondence would contain a telephone number for her to contact the Commission should she wish. Following the phone call, an email was sent to Ms Harris, confirming that on the basis of the information she had provided in her application, she had not served the minimum employment period. Ms Harris was directed to file in the Commission any documents/evidence to support her claim of having served the minimum employment period within 14 days. It was noted in the absence of any material being received, her application may be dismissed.

[4] On 21 March 2018, an attempt to telephone Ms Harris was made in relation to the correspondence of 13 March 2018, however there was no answer and a voicemail message was left.

[5] On 23 March 2018, further correspondence was sent to Ms Harris which confirmed no material had been received from her. Ms Harris was asked to contact the Commission within seven days and explain why she had not responded to the first piece of correspondence. Ms Harris was advised if no contact was made, her application would be determined based on the material before the Commission.

[6] On 4 April 2018, a final attempt to contact Ms Harris via telephone was made and a voicemail message was left.

[7] To date, Ms Harris has not responded to the Commission’s correspondence or made contact via telephone.

[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 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.

[10] Having regard to the circumstances of this matter, I am satisfied Ms Harris has not completed the required minimum employment period and her application has no reasonable prospects of success. Based on the dates contained in the Form F2 which outline the period of employment, Ms Harris has, at best, worked less than four months. 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

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