Miss Kim McLaughlin v Dont Forget Food Enterprises T/A the GV Hotel

[2017] FWC 2720

[2017] FWC 2720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Kim McLaughlin
v
Dont Forget Food Enterprises T/A The GV Hotel
(U2017/3958)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy.

[1] On 11 April 2017, Miss Kim McLaughlin made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss McLaughlin advised that she commenced employment with Dont Forget Food Enterprises T/A The GV Hotel (The GV Hotel) on 19 October 2016 and was dismissed on 27 March 2017. A comment by Miss McLaughlin within the Form F2 – Unfair Dismissal Application said “the auto dates say I wasn’t employed for 6 months. I hope you will consider an exception for a few days. I honestly thought I had the dates covered when I began this process and I would like my case to be considered.”

[3] On 13 April 2017, a telephone call was made to Miss McLaughlin, however there was no answer and a voicemail was left. On the same day, correspondence was sent to Miss McLaughlin confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Miss McLaughlin 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. Miss McLaughlin was advised in the absence of any material being received, her application may be dismissed.

[4] On 24 April 2017 and 1 May 2017, further attempts to contact Miss McLaughlin via telephone were made and on each occasion a voicemail was left. Following the phone call on 1 May 2017, correspondence was sent to Miss McLaughlin 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 McLaughlin was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 13 April 2017. Miss McLaughlin was advised that if there was no response, her application would be determined on the material currently before the Commission.

[5] On 2 May 2017, Miss McLaughlin emailed the Commission, saying “I have spoken to someone about this already.” The following day, the Commission attempted to telephone Miss McLaughlin regarding her email as there was no record of Miss McLaughlin having contacted the Commission regarding her application. A voicemail message was left on that occasion, and on 9 May 2017, seeking a return call.

[6] Save for Miss McLaughlin’s email of 2 May 2017, she has not responded to the Commission’s correspondence or returned telephone calls.

[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] In the circumstances of this matter, I am satisfied Miss McLaughlin has not completed the required minimum employment period.

[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] Based on the material before me, I am not satisfied Miss McLaughlin 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

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