Miss Lacella Arnott v Smart Stay Villages T/A Smart Stay Villages

[2017] FWC 5915

[2017] FWC 5915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Miss Lacella Arnott

v

Smart Stay Villages T/A Smart Stay Villages

(U2017/11041)

Deputy President Anderson ADELAIDE, 10 NOVEMBER 2017

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

1. On 15 October 2017, Miss Lacella Arnott made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the FW Act).

1. Miss Arnott claimed that she commenced employment with Smart Stay Villages T/A Smart Stay Villages on 11 April 2017 and that she was notified of her dismissal on 24 September 2017.

1. The Fair Work Commission (the Commission) contacted Miss Arnott by telephone on 16 and 17 October 2017 in regards to the minimum employment period. There was no answer on either occasion. 

1. On 17 October 2017, correspondence was sent by the Commission to Miss Arnott pointing out that, on the basis of the information contained in her application, she had not served the legally required minimum employment period. The correspondence required Miss Arnott to advise the Commission within 14 days whether she wished to proceed with her application.

1. On 26 October 2017, email correspondence was sent by the Commission to Miss Arnott further requesting a response. No response was received.

1. On 31 October 2017, Miss Arnott was contacted by telephone again by the Commission. There was no answer and a voicemail message was left.

1. On 1 November 2017, further correspondence was sent to Miss Arnott allowing a further 7 days in which to reply, after which time the application would be determined and may be dismissed.

1. On 8 November 2017, a further telephone call was made to Miss Arnott. There was no answer and a voicemail message was left.

1. To date, Miss Arnott has not responded to any correspondence.

1. 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.

1. 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.

1. 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 Miss Arnott has not completed the required minimum employment period. Her application has no reasonable prospects of success.

1. 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.

2. 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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