Nuriban Dinc v Cafe sapore T/A Cafe sapore

[2019] FWC 3487

[2019] FWC 3487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nuriban Dinc
v
Cafe sapore T/A Cafe sapore
(U2019/2762)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2019

Application for an unfair dismissal remedy.

[1] On 13 March 2019, Miss Nuriban Dinc made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Dinc advised that she commenced employment with Cafe sapore T/A Cafe sapore on 7 December 2018 and that she was notified of her dismissal on 8 March 2019, with the dismissal taking effect the following day on 9 March 2019.

[3] On the same day as the lodgment of Miss Dinc’s application, the Commission attempted to telephone her to discuss the minimum employment period required under the Act. This was unsuccessful and a voicemail message was left seeking her return call. Following this, email correspondence was sent to Miss Dinc’s nominated email address which confirmed that her Form F2 indicated she had not been employed for the minimum employment period required under the Act, and further directed Miss Dinc to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period. It was noted that if no response was received, Miss Dinc’s application may be dismissed without further notice.

[4] On 8 April 2019, final correspondence was sent to Miss Dinc’s nominated email address which noted that the Commission had not received any material from her and warning that if she did not provide an acceptable explanation as to why she did not respond to the direction contained in the correspondence of 13 March 2019 within seven days, her application would be determined on the material currently before the Commission.

[5] On each day of 17 and 21 May 2019, the Commission attempted to telephone Miss Dinc. Both attempts were unsuccessful and no voicemail message was able to be left.

[6] To date, the Commission has not received any documentation or correspondence from Miss Dinc.

[7] 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.

[8] 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.”

[9] 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.”

[10] Having regard to the circumstances of this matter, I am satisfied that as Miss Dinc 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 Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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