Rita Anwari v Educare Training Institute Australasia Pty Ltd

[2017] FWC 5584

[2017] FWC 5584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rita Anwari
v
Educare Training Institute Australasia Pty Ltd
(U2017/9932)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 12 September 2017, Mrs Rita Anwari made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Anwari advised that she commenced employment with Educare Training Institute Australasia Pty Ltd on 14 September 2016 and that her dismissal took effect on 29 November 2016.

[3] On 13 September 2017, the Fair Work Commission (the Commission) attempted to contact Mrs Anwari via telephone, however there was no answer and a voicemail message could not be left. On the same day, correspondence was sent to Mrs Anwari indicating that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence directed Mrs Anwari to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Mrs Anwari was advised that in the absence of any material being received, her application may be dismissed.

[4] On 14 September 2017, Mrs Anwari telephoned the Commission and was advised regarding the minimum employment period requirement under the Act. Mrs Anwari stated that her enquiry was in relation to unpaid wages. It was suggested to Mrs Anwari that she may wish to contact the Fair Work Ombudsman. Mrs Anwari advised that she would notify the Commission in due course if she decided to discontinue her application.

[5] On 25 September 2017, the Commission made two attempts to contact Mrs Anwari via telephone, however these were unsuccessful and voicemail messages could not be left. The Commission made a further attempt to contact Mrs Anwari’s listed representative, Mr Parmesh Chand of Chand Lawyers, however this was also unsuccessful and a voicemail message could not be left.

[6] On 3 October 2017, Mrs Anwari was contacted via telephone. She advised that she would notify the Commission by close of business the following day as to whether she wished to discontinue her application.

[7] On 5 October 2017, Mr Chand telephoned the Commission and enquired as to the status of Mrs Anwari’s application. The Commission advised Mr Chand that no material had been received from Mrs Anwari in relation to the minimum employment period requirement despite correspondence of 13 September 2017 directing her to do so.

[8] Later that day, the Commission sent correspondence to Mrs Anwari noting that she had not filed material in support of her claim she had served the minimum employment period. Mrs Anwari was given a further seven days to provide an explanation as to why she did not respond to the direction contained in the correspondence of 13 September 2017. Mrs Anwari was advised that if there was no response to this correspondence, her application would be determined on the material currently before the Commission.

[9] On 12 October 2017, a final attempt made by the Commission to contact Mrs Anwari via telephone was unsuccessful and a voicemail message could not be left. The Commission subsequently telephoned Mr Chand to clarify if he had received instructions as to whether Mrs Anwari wished to discontinue her application. Mr Chand said that he would attempt to contact Mrs Anwari and advise the Commission later that day. He did not do so and nor has he made any further contact with the Commission.

[10] To date, Mrs Anwari has not filed any material with the Commission in relation to the minimum employment period and a Notice of Discontinuance has not been received.

[11] 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.

[12] 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.

[13] In the circumstances of this matter, I am satisfied Mrs Anwari has not completed the required minimum employment period and her application has no reasonable prospects of success.

[14] 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.

[15] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597163>