Michaela Earnshaw v Hideout Kitchen Co

[2019] FWC 4072

[2019] FWC 4072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michaela Earnshaw
v
Hideout Kitchen Co.
(U2019/4146)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 10 April 2019, Miss Michaela Earnshaw 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), Miss Earnshaw advised that she commenced employment with Hideout Kitchen Co. on 22 October 2018 and that she was notified of her dismissal on 28 March 2019, with the dismissal taking effect on the same day.

[3] On 12 April 2019, the Commission attempted to contact Miss Earnshaw via telephone; however the mobile phone had been disconnected. Email correspondence was then sent to Miss Earnshaw on the same day advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Miss Earnshaw 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] As no material had been received from Miss Earnshaw, on 13 May 2019, final correspondence was sent to Miss Earnshaw via email. The correspondence noted that unless Miss Earnshaw contacted the Commission within seven days of the date of the letter and provided an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined on the material currently before the Commission without further reference to her.

[5] On 22 May 2019, another attempt to contact Miss Earnshaw via telephone was made. The mobile phone was still disconnected.

[6] To date, the Commission has not received any documentation from Miss Earnshaw.

[7] 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.

[8] 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.”

[9] 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.”

[10] Having regard to the circumstances of this matter, I am satisfied that as Miss Earnshaw 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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