RaeLea Foley v Camm Agricultural Group

[2019] FWC 847

[2019] FWC 847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

RaeLea Foley
v
Camm Agricultural Group
(U2018/12023)

DEPUTY PRESIDENT DEAN SYDNEY, 13 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 21 November 2018, Miss RaeLea Foley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Foley’s application states that she commenced employment with Camm Agricultural Group on 24 May 2018 and that she was dismissed on 9 November 2018.

[3] On 27 November 2018, Camm Agricultural Group filed an Employers Response (form F3) and an Objection to the unfair dismissal application (form F4) objecting to the application on the grounds that Miss Foley’s employment had not met the minimum employment period.

[4] On 21 December 2018, correspondence was sent to Miss Foley indicating that, based on the information contained in her application and in the Employer Response, it appeared she may not have served the minimum employment period. The correspondence required Miss Foley to file a statement within seven days to support her claim of having served the minimum employment period.

[5] During a telephone conversation with my associate on 31 December 2018, Miss Foley acknowledged that she had been employed by Camm Agricultural Group for less than six months. Miss Foley was invited to withdraw her application on the basis the minimum employment period had not been met. She indicated that she would seek advice on her options.

[6] On 21 January 2019, correspondence was sent to Miss Foley noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Miss Foley was given until 4pm on
24 January 2019 to respond. Miss Foley was advised that in the absence of any material being received, her application may be dismissed.

[7] Final attempts were made to contact Miss Foley by telephone on 11 February 2019.

[8] To date Miss Foley has not responded to any of the Commission’s correspondence.

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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 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.

[12] In the circumstances of this matter, I am satisfied Miss Foley has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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