Paloma Lette v Sheike T/A Sheike

[2018] FWC 6512

[2018] FWC 6512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paloma Lette
v
Sheike T/A Sheike
(U2018/2298)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 6 March 2018, Miss Paloma Lette 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, Miss Lette advised that she commenced employment with Sheike on 23 November 2017 and that her dismissal took effect on 6 February 2017. It appears ‘2017’ is a typographical error as attached to her application, Miss Lette had included a termination letter which confirms Miss Lette’s employment was terminated on 6 February 2018.

[3] There were three issues identified with Miss Lette’s application. Firstly, the application for fee waiver submitted by her was unsigned. Secondly, it did not appear the minimum employment period required under the Act had been served and finally, the application was filed out of time.

[4] On 7 March 2018, an attempt to telephone Miss Lette to discuss the above matters was made, however this was unsuccessful. Following this, email correspondence was sent to Miss Lette setting out the issues with her application. Miss Lette was directed to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period. Miss Lette was advised to sign and return the fee waiver form she had submitted. It was further noted that if Miss Lette did not contact the Commission within 14 days, her application may be dismissed.

[5] On 27 March 2018, a further attempt to telephone Miss Lette was made, however the phone number had been disconnected. Further correspondence was then sent to Miss Lette who was given seven days to provide an explanation of why she did not respond to the direction contained in the first letter. Miss Lette was advised her application would otherwise be determined on the material currently before the Commission without further reference to her.

[6] On 3 April 2018, a final attempt to telephone Miss Lette was made and it appeared the phone number was still disconnected.

[7] On 10 October 2018, final correspondence was emailed to Miss Lette who was advised to provide her evidence and completed fee waiver application by close of business on 11 October 2018. Miss Lette was advised if she wished to discontinue her application, she could file a Notice of Discontinuance (which was attached to the email) or telephone the Commission to discontinue.

[8] To date, Miss Lette has not responded to the Commission’s 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] Section 395 of the Act, which deals with application fees, provides:

“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] 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] 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 Miss Lette 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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