Noorul Sabha v Australian Receivables Limited

[2019] FWC 5995

[2019] FWC 5995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Noorul Sabha
v
Australian Receivables Limited
(U2019/8506)

COMMISSIONER BISSETT MELBOURNE, 29 AUGUST 2019

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 1 August 2019, Ms Noorul Sabha made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Sabha did not pay the required fee.

[3] In her Form F2 – Unfair Dismissal Application, Ms Sabha advised that she commenced employment with Australian Receivables Limited on 15 April 2019 and that she was notified of her dismissal on 3 July 2019.

[4] On 2 August 2019, correspondence was sent to Ms Sabha advising that on the basis of the information contained in her application, she had not served the minimum employment period. The correspondence also advised that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] The correspondence required Ms Sabha to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 16 August 2019, further correspondence was sent to Ms Sabha allowing a further 7 days in which to reply, after which time the application would be dismissed.

[7] On 27 August the Commission attempted to contact Ms Sabha by telephone in relation to the correspondence dated 2 August 2019.

[8] To date, Ms Sabha has not paid the required fee or provided material in relation to the minimum employment period required under the FW Act.

[9] 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.

[10] Section 383 of the FW Act sets out the minimum employment period and states 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.

[11] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[12] Having regard to the circumstances of this matter, I am satisfied Ms Sabha has not completed the required minimum employment period and her application has no reasonable prospects of success.

[13] In addition, having regard to the circumstances, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act.

[14] 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 the FW Act; or

(b the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[15] Having regard to the circumstances of this matter, I am satisfied that as Ms Sabha 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 FW Act. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

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