Natasha Bennett v Best Sheds

[2018] FWC 671

[2018] FWC 671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Natasha Bennett

v

Best Sheds

(U2017/12739)

Deputy President Dean SYDNEY, 1 FEBRUARY 2018

Application for an unfair dismissal remedy.

1. On 29 November 2017, Ms Natasha Bennett made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. Ms Bennett’s application states that she commenced employment with Best Sheds (the respondent) on 28 April 2017 and that her dismissal took effect on 8 November 2017.

1. On 5 December 2017, the respondent filed the Form F3 – Employers response, objecting to the application on the grounds that Ms Bennett had not met the minimum employment period. It was the respondent’s submission that Ms Bennett’s start date was 4 May 2017 and that during her time of employment she had had 9 days of unpaid leave.

1. On 11 January 2018, correspondence was sent to Ms Bennett indicating that, based on the information contained in the Employers Response, it appeared she had not served the minimum employment period. The correspondence required Ms Bennett to file a statement within seven days to support her claim of having served the minimum employment period.  Ms Bennett was advised that if there was no response her application would be determined on the material currently before the Commission.

1. Correspondence was also sent to the respondent on 11 January 2018 requesting it provide any material that supported its contention that Ms Bennett’s date of commencement was 4 May 2017. The respondent replied that day with copies of Ms Bennett’s signed letter of offer and Tax File Number Declaration, both of which indicated a start date of 4 May 2017.

1. On 19 January 2018, correspondence was sent to Ms Bennett to follow up on the request that she provide any material evidencing her commencement date.  Ms Bennett was given a further period of four days to respond.  Ms Bennett was advised in the absence of any material being received, her application may be dismissed.

1. On 24 and 25 January 2018, final attempts to contact Ms Bennett by telephone were made.

1. To date, Ms Bennett has not responded to any of the Commission’s correspondence.

1. 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.

1. 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.

1. 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.

1. In the circumstances of this matter, I am satisfied Ms Bennett 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.

1. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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