Miss Emily Day v 4 Kings Coffee and Food

[2017] FWC 1723

[2017] FWC 1723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Emily Day
v
4 Kings Coffee and Food
(U2017/1031)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 31 January 2017, Miss Emily Day made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Day advised that she commenced employment with 4 Kings Coffee and Food on 28 August 2016 and that her dismissal took effect on 11 January 2017.

[3] On 2 February 2017, a telephone call was made to Miss Day, however, there was no answer and a voicemail message was left raising the minimum employment period requirement under the Act and seeking a return call. On the same day, correspondence was sent to Miss Day pointing out that based on the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Day to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days.

[4] Miss Day telephoned the Commission on 2 February 2017 and advised she could recall being offered the position on 11 July 2016, but was unsure if she started working on that day or a later day. This was in contrast to what she had indicated in her application form upon lodgement. Ms Day was given the contact phone number for Job Watch and advised she would contact the Commission the following afternoon.

[5] This did not occur, so on 14 February and 16 February 2017, further attempts to contact Miss Day were made and on each occasion a voicemail message was left seeking a return call. After the latter phone call, correspondence was sent to Miss Day noting she had previously been directed to file material in support of her claim she had served the minimum employment period but had not done so. Miss Day was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 2 February 2017. Miss Day was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] To date, Miss Day has not replied to the Commission’s correspondence.

[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] Based on the material before me, I am not satisfied Miss Day has completed the required minimum employment period and therefore, I consider her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR591328>