Ms Christine Mellersh v MACA Mining Pty Ltd

[2020] FWC 676

[2020] FWC 676

FAIR WORK COMMISSION

DECISION

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

Ms Christine Mellersh
v
MACA Mining Pty Ltd
(U2019/14192)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 FEBRUARY 2020

Application for an unfair dismissal remedy

[1] On 17 December 2019, Ms Christine Mellersh made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Ms Mellersh did not pay the required fee.

[3] Ms Mellersh advised that she commenced employment with MACA Mining Pty Ltd on 1 August 2019 and that she was notified of her dismissal on 11 December 2019.

[4] On 19 December 2019 correspondence was sent to Ms Mellersh indicating that on the basis of the information provided she had not served the minimum employment period. The correspondence also advised that her application required payment of the filing fee or a completed waiver form. The correspondence required Ms Mellersh to advise the Fair Work Commission (Commission) within 14 days whether she wished to proceed with her application.

[5] On 8 January 2020 further correspondence was sent to Ms Mellersh allowing a further 7 days in which to reply, after which time the application would be determined on the information before the Commission.

[6] On 16 January 2020 the Commission attempted unsuccessfully to contact Ms Mellersh by telephone in relation to the correspondence dated 8 January 2020.

[7] The matter was referred to me for determination on 7 February 2020. On this day my Chambers attempted to contact Ms Mellersh to discuss the application. This call was not answered. A voicemail message was left but was not returned.

[8] To date, no response has been received from Ms Mellersh and payment of the required fee has not been made.

[9] Section 395 of the FW Act, which deals with application fees, provides:

“395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[10] Section 382 of the FW 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 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.”

[12] Section 587(1) of the FW 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.”

[13] Having regard to the circumstances of this matter, I am satisfied that as the prescribed fee was not paid the application was not made in accordance with the FW Act. I also observe that on the material before the Commission Ms Mellersh has not completed the minimum employment period required by the FW Act. As such, the application has no reasonable prospects of success. The application is dismissed under s.587(1)(a) and (c) of the FW Act.

[14] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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