Miss Rebecca Watkins v Teleperformance

[2017] FWC 511

[2017] FWC 511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Rebecca Watkins
v
Teleperformance
(U2016/15371)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JANUARY 2017

Application for an unfair dismissal remedy.

[1] On 22 December 2016, Miss Rebecca Watkins made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Watkins advised that she commenced employment with Teleperformance on 31 October 2016 and that her dismissal took effect on 22 December 2016.

[3] On 23 December 2016, a phone call was made to Miss Watkins and she confirmed her employment was for the period 31 October 2016 to 22 December 2016. The minimum employment period required under the Act was raised with Miss Watkins, who challenged the correctness of this information. Ultimately, Miss Watkins terminated the telephone call.

[4] Correspondence was then sent to Miss Watkins pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Watkins 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.

[5] On 5 January 2017, a further phone call was made to Miss Watkins to discuss her application. Miss Watkins confirmed she had been advised of the minimum employment period requirement by the Commission, but that she did not receive the correspondence of 23 December 2016. The Commission confirmed Miss Watkins’ email address as correct and she terminated the call.

[6] On 10 January 2017, a voice mail message was left for Miss Watkins requesting a return call as to her intentions with the matter. Further correspondence was sent to Miss Watkins, allowing a further seven days in which to reply. Miss Watkins was advised that if there was no response, her application would be determined on the material currently before the Commission.

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

[8] 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.

[9] 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.

[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] In the circumstances of this matter, I am satisfied Miss Watkins 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. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

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