Naomi Martin v Power Choice

[2019] FWC 5726

[2019] FWC 5726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Naomi Martin
v
Power Choice
(U2019/6656)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 17 June 2019, Ms Naomi Martin made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Martin advised that she commenced employment with Power Choice on 4 June 2019 and that she was notified of her dismissal on 17 June 2019, with the dismissal taking effect the same day.

[3] On 19 June 2019, the Commission attempted to telephone Ms Martin but she was unable to be contacted. No voicemail message was able to be left. Subsequently, correspondence was sent to Ms Martin’s nominated email address advising that her Form F2 indicated she had not been employed for the minimum employment period required under the Act. The correspondence directed Ms Martin to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] On 19 July 2019, the Commission sent final correspondence to Ms Martin’s nominated email address nothing that unless Ms Martin contacted the Commission within seven days to provide an acceptable explanation as to why she did not respond to the direction contained in the letter dated 19 June 2019, her application would be determined on the material currently before the Commission without further reference to her.

[5] On 15 August 2019, the Commission attempted a final telephone call to Ms Martin, who was unable to be contacted. A voicemail message was left urging her to return the Commission’s call.

[6] To date, the Commission has not received any documentation from Ms Martin.

[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] Having regard to the circumstances of this matter, I am satisfied that as Ms Martin has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711409>