Melissa Esmonde v Gold Razor Barbers

[2019] FWC 5853

[2019] FWC 5853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Esmonde
v
Gold Razor Barbers
(U2019/8051)

COMMISSIONER BISSETT MELBOURNE, 22 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 22 July 2019 Ms Melissa Esmonde made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Esmonde advised that she commenced employment with Gold Razor Barbers on 12 June 2019 and that she was notified of her dismissal on 21 July 2019 with her dismissal taking effect on 22 July 2019.

[3] On 23 July 2019 the Fair Work Commission (Commission) wrote to Ms Esmonde advising that on the basis of the information contained in the application she had not served the minimum employment period. The correspondence required Ms Esmonde to advise the Commission within 14 days whether she wished to proceed with her application. A voice message was left for Ms Esmonde asking her to call the Commission.

[4] On 24 July 2019 Ms Esmonde called the Commission and left a voice message asking the Commission to return her call. On the same day, the Commission made three attempts to contact Ms Esmonde by telephone which were unsuccessful.

[5] On 7 August 2019, a further attempt to contact Ms Esmonde by telephone was made and a voice message left advising that if she did not contact the Commission her application may be dismissed.

[6] On 9 August 2019 further correspondence was sent to Ms Esmonde allowing a further seven days in which to reply, after which time the application would be dismissed.

[7] On 15 August 2019 a last attempt to contact Ms Esmonde by telephone was made and a voice message left on her phone.

[8] To date, Ms Esmonde has not replied to that correspondence or returned any of the Commissions calls.

[9] 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.

[10] Section 383 of the FW Act sets out the minimum employment period. Section 383 of the FW states that:

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 FW 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 the FW Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[12] Having regard to the circumstances of this matter, I am satisfied that as Ms Esmonde 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 FW Act. An order 1 to this effect will be issued shortly

COMMISSIONER

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