Melissa McArdle v SunsetCali Pty Ltd

[2019] FWC 896

[2019] FWC 896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa McArdle
v
SunsetCali Pty Ltd
(U2018/12993)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 14 December 2018, Ms Melissa McArdle made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms McArdle advised that she commenced employment with SunsetCali Pty Ltd on 7 November 2018 and that she was notified of her dismissal on 9 December 2018, with the dismissal taking effect on the same day.

[3] On 18 December 2018, the Commission attempted to telephone Ms McArdle on the telephone number provided in her Form F2. She was unable to be reached, so a voicemail message was left requesting a return call. Following this, email correspondence was sent to Ms McArdle’s nominated email address advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Ms McArdle to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] On 8 January 2019, the Commission emailed further correspondence to Ms McArdle’s nominated email address, warning that unless she contacted the Commission within seven days with an explanation as to why she had not responded to the direction contained in the correspondence dated 18 December 2018, her application would be determined on the material currently before the Commission. The Commission also attempted to telephone Ms McArdle and left a voicemail message requesting her return call.

[5] On 15 January 2019, the Commission successfully telephoned Ms McArdle and advised her about the minimum employment period requirement under the Act. The Commission’s records indicate that Ms McArdle prematurely terminated the telephone discussion.

[6] On 23 January 2019, a final attempt was made to telephone Ms McArdle. She was unable to be reached and a voicemail message was left.

[7] To date, the Commission has not received any further response from Ms McArdle.

[8] 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.

[9] 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.”

[10] 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.”

[11] Having regard to the circumstances of this matter, I am satisfied that as Ms McArdle 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 Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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