Miss Sandra Mitrevska v ACTEW AGL T/A ActewAGL

[2017] FWC 2726

[2017] FWC 2726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Sandra Mitrevska
v
ACTEW AGL T/A ACTEWAGL
(U2017/3732)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 MAY 2017

Application for an unfair dismissal remedy.

[1] On 6 April 2017, Miss Sandra Mitrevska made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Mitrevska advised she commenced employment with ACTEW AGL T/A ACTEWAGL on 23 January 2017 and that her dismissal took effect on 30 March 2017.

[3] On 10 April 2017, the Fair Work Commission (the Commission) attempted to telephone Miss Mitrevska, however there was no answer and a voicemail message was left. On the same day, correspondence was sent to Miss Mitrevska pointing out that based on the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Mitrevska to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days.

[4] On 18 and 28 April 2017, further attempts to contact Miss Mitrevska 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 Mitrevska 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 Mitrevska was given a further seven days to provide an explanation of why she did not respond to the direction contained in the correspondence of 10 April 2017. Miss Mitrevska was advised that if there was no response, her application would be determined on the material currently before the Commission.

[5] On 8 May 2017, the Commission left a further voicemail for Miss Mitrevska requesting that she urgently contact the Commission.

[6] To date, Mrs Mitrevska 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] In the circumstances of this matter, I am satisfied Miss Mitrevska 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 shortly.

DEPUTY PRESIDENT

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