Miss Gemma Armstrong v Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd

[2017] FWC 6105

[2017] FWC 6105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Gemma Armstrong
v
Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd
(U2017/11611)

DEPUTY PRESIDENT DEAN SYDNEY, 22 NOVEMBER 2017

Application for an unfair dismissal remedy.

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

[2] Miss Armstrong’s application states that she commenced employment with Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd on 29 May 2017 and that her dismissal took effect on 24 October 2017.

[3] On 2 November 2017, correspondence was sent to Miss Armstrong confirming that based on the information contained in her application, it appeared she had not served the minimum employment period. The correspondence required Miss Armstrong to file in the Fair Work Commission a statement to support her claim of having served the minimum employment period within seven days. Miss Armstrong was advised that if there was no response, her application would be determined on the material currently before the Commission.

[4] On 10 November 2017, correspondence was sent to Miss Armstrong noting that 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 Armstrong was given until 4pm, 14 November 2017, to respond. Miss Armstrong was advised in the absence of any material being received, her application may be dismissed.

[5] On 15 November 2017 and 16 November 2017, final attempts to contact Miss Thompson by telephone were made. The Commission left voicemail messages on Miss Armstrong’s mobile for her to contact the Commission as a matter of urgency.

[6] To date, Miss Armstrong has not replied to any of 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] In the circumstances of this matter, I am satisfied Miss Armstrong has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[11] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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