Miranda Hardman v Pascoe's Gas Water & Electrical T/A Australian Private Company

[2019] FWC 3767

[2019] FWC 3767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Miranda Hardman
v
Pascoe’s Gas Water & Electrical T/A Australian Private Company
(U2019/1958)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 12 JUNE 2019

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 22 February 2019, Ms Miranda Hardman made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Ms Hardman advised that she commenced employment with Pascoe’s Gas Water & Electrical T/A Australian Private Company on 18 February 2019 and that her dismissal took effect on 22 February 2019.

[3] On 5 and 15 April 2019 calls were made by the Fair Work Commission (the Commission) to Ms Hardman concerning the minimum employment period, but were not answered. The calls were not returned.

[4] On 9 May 2019 correspondence was sent to Ms Hardman pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Hardman to advise the Commission within 14 days whether she wished to proceed with her application.

[5] On 15 May 2019 a further unsuccessful telephone call was made and then further correspondence was sent to Ms Hardman requiring a response and explanation for her non-responsiveness and that her application would be determined and may be dismissed.

[6] The Commission left voice messages for Ms Hardman on 26 February 2019, 5 April 2019, 15 April 2019, 9, 15, 17, 21 and 24 May 2019. Ms Hardman has not responded to these messages.

[7] To date, Ms Hardman has not replied to any calls or correspondence from the Commission on this application.

[8] 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.

[9] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:

“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] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Ms Hardman has not completed the required minimum employment period. Her application has no reasonable prospects of success.

[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] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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