Norma-Wrae Finlay v Mantra Group T/A Mantra Group Portsea

[2018] FWC 970

[2018] FWC 970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Norma-Wrae Finlay

v

Mantra Group T/A Mantra Group Portsea

(U2017/13251)

Deputy President Clancy MELBOURNE, 14 FEBRUARY 2018

Application for an unfair dismissal remedy.

1. On 14 December 2017, Ms Norma-Wrae Finlay made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. In her Form F2 – Unfair dismissal application, Ms Finlay advised she commenced employment with Mantra Group on 29 August 2017 and was notified of her dismissal on 29 November 2017, with it taking effect the same day.

1. Further, Ms Finlay filed an application for fee waiver, however the form was incomplete as questions five and six were unanswered.

1. The Fair Work Commission attempted to telephone Ms Finlay on the same day she filed her application and left a voicemail for a return call.  Correspondence was then sent to one of Ms Finlay’s nominated email addresses (she had provided two) which noted the application for fee waiver was incomplete and it needed to be completed and returned.  Further, confirmation was sought of her employment dates as it appeared she may not have been employed for the minimum employment period required under the Act.

1. As no response had been received, on 4 January 2018, the Commission telephoned Ms Finlay who advised she had not received the email correspondence of 14 December 2017.  The minimum employment period was also discussed with Ms Finlay.  The Commission confirmed one of Ms Finlay’s email addresses and immediately re-sent correspondence which required within 14 days any documents/evidence to support Ms Finlay’s claim she had served the minimum employment period be provided to the Commission.  A complete application for fee waiver was also sought.  Ms Finlay was advised in the absence of material being received, her application may be dismissed.

1. On 18 January 2018, further correspondence was sent to one of Ms Finlay’s email addresses which advised that unless contact was made with the Commission within seven days with an explanation as to why she did not respond to the direction contained in the previous letter, the application would be determined based on the material before the Commission.

1. On 29 January 2018, a voicemail message was left for Ms Finlay seeking an urgent return call.

1. On 2 February 2018, I caused final correspondence to be sent to both email addresses recorded on Ms Finlay’s application form.  I directed Ms Finlay to file any documents/evidence to support her claim of having served the minimum employment period within seven days.

1. To date, Ms Finlay has not responded to the Commission’s correspondence.

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. Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. Further, I am satisfied Ms Finlay has not completed the required minimum employment period and her application has no reasonable prospects of success. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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