DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martha Dellimanolis
v
Nestle Australia Pty Ltd
(U2021/6769)

COMMISSIONER BISSETT

MELBOURNE, 25 AUGUST 2021

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 2 August 2021, Ms Martha Dellimanolis 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 Dellimanolis advised in the Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Nestle Australia Pty Ltd on 27 May 2021 and that she was notified of her dismissal on 13 July 2021 with the dismissal taking effect on the same day.

[3] On 3 August 2021, the Commission telephoned Ms Dellimanolis on her nominated telephone number and advised her that she did not meet the minimum employment period requirements. Ms Dellimanolis advised the employment dates provided on the Form F2 were correct.

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

[5] As the required documentation was not received, on 17 August 2021 the Commission made a final attempt to contact Ms Dellimanolis on her nominated telephone number to discuss her application. Ms Dellimanolis did not answer the call. A voicemail message was left requesting she contact the Commission.

[6] To date, Ms Dellimanolis has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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

[10] In the circumstances of this matter, I am satisfied Ms Dellimanolis has not completed the required minimum employment period.

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

COMMISSIONER

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Martha Dellimanolis, a former employee of Nestle Australia Pty Ltd, applied for relief from unfair dismissal after being dismissed from her position. The crux of the dispute revolved around whether she had completed the requisite minimum employment period before her dismissal, which would entitle her to seek relief under the Fair Work Act 2009. This case was adjudicated by the Fair Work Commission. The legal issues the court needed to address were whether Dellimanolis had fulfilled the minimum employment requirement and whether the dismissal was conducted in accordance with the provisions of section 587 of the Fair Work Act. Specifically, the court had to determine if the dismissal was unfair and whether it should have been initiated by the Commission.

In examining the evidence, the Commission assessed the nature and duration of Dellimanolis' employment with Nestle Australia. It found that she had not met the minimum employment period stipulated by the Fair Work Act, which is a prerequisite for eligibility to claim relief from unfair dismissal. Consequently, the Commission concluded that the dismissal did not qualify for relief under the Act. The Commission’s reasoning hinged on the statutory requirement of a minimum employment period and the absence of evidence to support that this period was fulfilled by Dellimanolis. Given these findings, the application for relief from unfair dismissal was dismissed.

The final orders of the Commission reflected the conclusion that the dismissal did not warrant relief due to the insufficiency of the employment period. Dellimanolis' application was therefore denied, and no further action was taken to address her claim of unfair dismissal. The Commission’s decision underscored the importance of meeting the statutory criteria for eligibility and the necessity of adhering to the procedural requirements outlined in the Fair Work Act.

Martha Dellimanolis v Nestle Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established