Ramos Jajiow v Caths Cakes Pty Ltd

[2017] FWC 5152

[2017] FWC 5152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ramos Jajiow
v
Caths Cakes Pty Ltd
(U2017/8850)

DEPUTY PRESIDENT DEAN SYDNEY, 5 OCTOBER 2017

Application for an unfair dismissal remedy – minimum employment period not met.

[1] On 15 August 2017, Mr Ramos Jajiow made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Jajiow’s application states that he commenced employment with Cath’s Cakes Pty Ltd in February 2017 and that his dismissal took effect on 15 August 2017.

[3] On 18 August 2017, correspondence was sent to Mr Jajiow confirming that based on the information contained in this application, it appeared he had not served the minimum employment period for a small business. The correspondence required Mr Jajiow to file in the Fair Work Commission a statement to support his claim of having served the minimum employment period within 14 days. Mr Jajiow was advised that if there was no response, his application would be determined on the material currently before the Commission.

[4] On 13 September 2017, the Form F3 – Employer Response to Unfair Dismissal Application was forwarded to Mr Jajiow and he was asked to:

“Please refer to the Form F3 filed by the respondent. In particular please note that the respondent states that it has less than 15 employees. If this is correct, then the minimum employment period is 12 months.

Your application indicates that you have not met this period of employment.

If you have not met the minimum employment period then your claim cannot proceed.

Please confirm if you wish to proceed with your application, if so please explain why you believe the Commission can hear your application.”

[5] Mr Jajiow was given seven days to respond. No response was received. On 21 September 2017, another attempt to contact Mr Jajiow was made by email, he was given until 12 noon Wednesday 27 September 2017, to provide any response in accordance with the direction contained in the correspondence of 13 September 2017.

[6] On Thursday 21 September 2017, the respondent’s representative forwarded to my chambers an email that they had received from Mr Jajiow. It appears that Mr jajiow had not sent it to my chambers in error. That email stated:

“I have just read the email below stating that empolyment [sic] must be 12 month or more in order for this to be resolved. 

My Employment at Caths cakes was roughly 6 months.”

[7] On Friday 22 September 2017, Mr Jajiow was given a final opportunity to provide a statement as to why he may believe that he has met the minimum employment period, otherwise his application would be dismissed. Mr Jajiow replied that same day. His email stated:

“I was employed with Catgs [sic] Cakes for approx 6 months. I have read that i needd [sic] to be employed for 12 months or this case will not be recognised.”

[8] 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.

[9] 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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied that Mr Jajiow has not completed the required minimum employment period and his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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