Megan Lawlor v Regis Group Proprietary Limited T/A Regis the Gap

[2018] FWC 7043

[2018] FWC 7043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Megan Lawlor
v
Regis Group Proprietary Limited T/A Regis The Gap
(U2018/8928)

DEPUTY PRESIDENT DEAN SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 21 August 2018, Ms Megan Lawlor made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Lawlor’s application states that she commenced employment with Regis Group Proprietary Limited T/A The Regis Group (The Regis Group) on 31 January 2018 and that her dismissal took effect on 31 July 2018.

[3] On 3 October 2018, The Regis Group filed an Employers Response (form F3) objecting to the application on the grounds that Ms Lawlor had not met the minimum employment period. The Regis Group submitted that Ms Lawlor took two days of unpaid leave and three days of unauthorised leave during the course of her employment. It submitted that pursuant to s.22 of the Act, these periods are “excluded periods” and do not count towards Ms Lawlor’s period of service. As a result, it submitted, Ms Lawlor’s employment had not met the minimum employment period.

[4] On 8 October 2018, correspondence was sent to Ms Lawlor indicating that based on the information contained in the Employers Response it appeared she may not have served the minimum employment period. The correspondence required Ms Lawlor to file a statement within seven days to support her claim of having served the minimum employment period.

[5] On 19 October 2018 correspondence was received from Ms Lawlor’s then representative indicating that they expected to have obtained instructions to file a Notice of Discontinuance in the matter by close of business on 19 October 2018. On 26 October 2018 a Form F54, Notice of Representative Ceasing to Act was filed.

[6] Correspondence was sent to Ms Lawlor noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Ms Lawlor was given until 4pm, 31 October 2018, to respond. Ms Lawlor was advised that in the absence of any material being received, her application may be dismissed.

[7] On 9 November 2018, attempts were made to contact Ms Lawlor by telephone.

[8] To date, Ms Lawlor has not responded to the Commission.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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 Lawlor has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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