Nicole Bonaventura v Vitalis Family Medical Practice

[2021] FWC 1463

[2021] FWC 1463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Bonaventura
v
Vitalis Family Medical Practice
(U2021/1596)

COMMISSIONER BISSETT MELBOURNE, 18 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 26 February 2021 Ms Nicole Bonaventura made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Bonaventura advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Vitalis Family Medical Practice on 25 January 2021 and that her dismissal took effect on 23 February 2021.

[3] On 26 February 2021 the Commission attempted to contact Ms Bonaventura on her nominated telephone number. However, Ms Bonaventura did not answer the call. A voicemail message was left explaining that the Form F80 submitted was blank and that she did not appear to meet the minimum employment period. The Commission further explained that she would need to provide evidence in writing that she met the minimum employment period, or discontinue her application. The applicant was informed that she could contact the Commission to discuss the matter further.

[4] Later that day, the Commission emailed correspondence to Ms Bonaventura’s nominated email address 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 Ms Bonaventura to file any documents/evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if Ms Bonaventura did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to Ms Bonaventura’s nominated telephone number, requesting that she contact the Commission.

[5] As the required documentation was not received, on 10 March 2021 the Commission attempted to contact Ms Bonaventura via her nominated telephone number. However, Ms Bonaventura could not be reached. A voicemail message was left advising that the matter was at risk of being dismissed as she did not appear to meet the minimum employment period and that the Commission had not received a response to its correspondence. The Commission explained that the matter would now be referred to a Member and may be dismissed.

[6] To date, Ms Bonaventura has not replied to the Commission’s correspondence.

[7] 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.

[8] Section 383 of the FW 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.

[9] Section 587(1) of the FW Act provides that:

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 prospect of success.

[10] Having regard to the circumstances of this matter I am satisfied that as Ms Bonaventura has not completed the required minimum employment period under the FW Act, her application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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