Rebecca Nelson v Super Cheap Printing Pty Ltd

[2017] FWC 701

[2017] FWC 701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Nelson
v
Super Cheap Printing Pty Ltd
(U2017/150)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 5 January 2017, Mrs Rebecca Nelson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Nelson advised she commenced employment with Super Cheap Printing Pty Ltd on 20 July 2016 and that her dismissal took effect on 8 December 2016.

[3] On 6 January 2017, the Fair Work Commission telephoned Mrs Nelson who confirmed her period of employment. Mrs Nelson was advised that based on the information, she did not appear to have served the minimum employment period. Mrs Nelson said she would advise the Commission as to how she wished to proceed. On the same day, correspondence was sent to Mrs Nelson confirming that on the basis of the information provided in her application, she did not appear to have served the minimum employment period. The correspondence required Mrs Nelson to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Mrs Nelson was advised in the absence of any advice from her, her application may be dismissed.

[4] On 13 January 2017, the Commission left a voicemail for Mrs Nelson.

[5] On 20 January 2017, further correspondence was sent to Mrs Nelson allowing a further seven days in which to reply. Mrs Nelson was advised if no response was received, the application would be determined based on the material currently before the Commission.

[6] On 30 January 2017, the Commission left a further voicemail for Mrs Nelson requesting that she urgently contact the Commission.

[7] To date, Mrs Nelson has not replied to the Commission’s correspondence.

[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 Mrs Nelson has not completed the required minimum employment period and her 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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