Marjorie Cumming v Hope Community

[2018] FWC 1198

[2018] FWC 1198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marjorie Cumming
v
Hope Community
(U2018/736)

DEPUTY PRESIDENT BULL PERTH, 23 FEBRUARY 2018

Application for relief from unfair dismissal

[1] On 24 January 2018 Ms Marjorie Cumming made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Ms Cumming advised that she commenced employment with Hope Community on 3 July 2017 and that her dismissal took effect on 21 December 2017.

[3] On 25 January 2018 correspondence was sent to Ms Cumming pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Cumming to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 9 February 2018 further correspondence was sent to Ms Cumming allowing a further 7 days in which to reply, after which time the application would be dismissed.

[5] To date, Ms Cumming has not replied to that correspondence.

[6] On 19 February 2018 Ms Cumming was contacted by telephone, there was no answer and a voice mail message was left asking her to contact the Commission.

[7] On 22 February 2018 Ms Cumming was contacted again by telephone, there was no answer and a voice mail message was left advising the matter may be dismissed, and if the matter is dismissed a decision to that effect will be issued and made publicly available via the Commission's website.

[8] On 22 February 2018 Ms Cumming contacted the Commission to state that she feels it is not fair that she cannot lodge an unfair dismissal application as she does not meet the minimum employment period. She was advised to seek legal advice as to what she may do next. Ms Cumming would not confirm by telephone that she wished to discontinue her application.

[9] 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.

[10] 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.

[11] 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.

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

[13] Whilst it also appears that the application has been filed outside the stipulated 21 day period from the date the dismissal took effect as per s. 392(2) of the Act this is not a matter considered in this decision.

[14] Accordingly, the application is dismissed under s. 587(1)(c) of the Act.

DEPUTY PRESIDENT

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