Nicola Wiber v The Crown Hotel

[2015] FWC 3875

[2015] FWC 3875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicola Wiber
v
The Crown Hotel
(U2015/2962)

COMMISSIONER WILSON MELBOURNE, 12 JUNE 2015

Application for relief from unfair dismissal.

[1] On 10 February 2015, Ms Nicola Wiber made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Wiber advised that she commenced employment with The Crown Hotel on 17 November 2014 and that her dismissal took effect on 1 February 2015.

[3] On 11 February 2015, correspondence was sent to Ms Wiber pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Wiber to advise the Fair Work Commission within 14 days whether she wished to proceed with her application. On the same date, Ms Nicola Wiber was requested by telephone to provide an amended Form F2 application.

[4] On 27 February 2015 further correspondence was sent to Ms Wiber allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] On 20 April 2015 and 13 May 2015, voicemail messages were left on Ms Wiber’s phone requesting she contact the Commission.

[6] On 13 May 2015, Ms Wiber contacted the Commission and confirmed she will email the Commission with her correct employment dates. Ms Wiber did not send email correspondence to the Commission.

[7] On 21 May 2015, a further phone call was made to Ms Wiber allowing a further 14 days in which to reply, after which time the application would be dismissed.

[8] To date, Ms Wiber has not replied to that correspondence.

[9] 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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied Ms Wiber has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] 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.

[13] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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