Nichola Neeson v Foodland

[2024] FWC 1409

[2024] FWC 1409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nichola Neeson
v

Foodland

(U2024/4298)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MAY 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 15 April 2024, Mrs Nichola Neeson made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Act).

1. Mrs Neeson advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with Foodland (the Respondent) on 2 April 2024 and that her dismissal took effect on 15 April 2024. In addition, the Form F80 – Application for waiver of the application fee (Form F80) was blank.

1. On 18 April 2024, the Commission attempted to contact Mrs Neeson on her nominated telephone number. A voicemail message was left requesting Mrs Neeson call to verify the dates provided in her application. The Commission staff member also noted that the Form F80 was blank and advised that if Mrs Neeson continued with her application, she would need to lodge the completed Form F80.

1. Later that day the Commission emailed correspondence to Mrs Neeson’s nominated email advising her that, on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Mrs Neeson to file any documents or other evidence to support her claim that she had served the required minimum employment period. The correspondence also noted that Mrs Neeson’s Form F80 was blank and that she needed to pay the application fee or apply to have it waived. A link to the Form F80 was provided. That correspondence also warned that if she did not contact the Commission within 14 days it was very likely that her application would be dismissed without further notice.

1. As the required documentation was not received, on 6 May 2024 the Commission attempted to contact Mrs Neeson on her nominated telephone number. A voicemail message was left requesting that Mrs Neeson contact the Commission to establish if she wished to proceed with her application and to discuss the potential lodgement of an alternative application.

2. To date Mrs Neeson has not replied to 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. A completed Form F80 has not been received, nor payment of the application fee received.

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 383 of the Act sets out the minimum employment period as follows:

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 as follows:

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. As the material before the Commission does not indicate that Mrs Neeson has completed the required minimum employment period under the Act, I am satisfied the application has no reasonable prospect of success.

1. Further, in considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the reminders, Mrs Neeson has not paid the application fee nor submitted a completed Form F80.

1. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR775460.

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