Mrs Alexandra Singh v Thomos Food International T/A Thomos Food International Murray Bridge Pty Ltd

[2017] FWC 5977

[2017] FWC 5977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mrs Alexandra Singh
v
Thomos Food International T/A Thomos Food International Murray Bridge Pty Ltd
(U2017/11138)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 NOVEMBER 2017

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

[1] On 17 October 2017, Mrs Alexandra Singh made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] Mrs Singh advised that she commenced employment with Thomos Food International T/A Thomos Food International Murray Bridge Pty Ltd on 4 September 2017 and that she was notified of her dismissal on 27 September 2017.

[3] On 18 October 2017, correspondence was sent by the Fair Work Commission (the Commission) to Mrs Singh pointing out that, on the basis of the information contained in the application, she had not served the legally required minimum employment period. The correspondence required Mrs Singh to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 18 October 2017, the Commission also contacted Mrs Singh by telephone. Mrs Singh requested that she be provided with information in regards to general protections applications. This was provided by email on 18 October 2017.

[5] On 27 October 2017, email correspondence was sent to Mrs Singh requesting a response in regards to the minimum employment period on her unfair dismissal application. No response was received.

[6] On 31 October 2017, the Commission contacted Mrs Singh by telephone. Mrs Singh stated that she had not received any post or email correspondence from the Commission. The correspondence was re-sent by email and post.

[7] On 3 November 2017, further correspondence was sent to Mrs Singh allowing a further 7 days in which to reply, after which time the application would be determined and may be dismissed.

[8] On 10 November 2017, the Commission contacted Mrs Singh by telephone. Mrs Singh indicated that she intended to lodge a Form F50 Notice of Discontinuance.

[9] To date, Mrs Singh has not provided any further response.

[10] 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.

[11] 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.

[12] 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 Mrs Singh has not completed the required minimum employment period. Her application has no reasonable prospects of success.

[13] 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.

[14] 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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