Santleben v Got It Industries Pty Ltd

[2016] FWC 614

[2016] FWC 614

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Melissa Santleben
v
Got It Industries Pty Ltd
(U2015/17216)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 29 JANUARY 2016
Application for relief from unfair dismissal.

[1]        On 30 December 2015, Ms Melissa Santleben made an application for a remedy for

unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2]        Ms Santleben advised that she commenced employment with Got It Industries Pty Ltd

on 12 October 2015 and that her dismissal took effect on 9 December 2015.

[3]        On 31 December 2015, correspondence was sent to Ms Santleben pointing out that on

the basis of the information contained in the application, she had not served the minimum

employment period. The correspondence required Ms Santleben to advise the Fair Work

Commission within 14 days whether she wished to proceed with her application.

[4]        On 6 January 2016, Ms Santleben contacted the Commission by telephone and

requested an extension of time to enable her to speak with her solicitor. Commission staff

requested Ms Santleben to advise the Commission whether or not she wanted to proceed with

her application as soon as possible.

[5]        On 14 January 2016, the Commission wrote to Ms Santleben with respect to her

failure to comply with the Commission’s earlier correspondence of 31 December 2015, and

directed Ms Santleben to contact the Commission within seven days to provide an explanation

as to why she did not comply with the direction. The correspondence advised Ms Santleben

that failure to provide an acceptable explanation would result in the application being

determined on the material currently before the Commission.

[6]        On 27 January 2016, Commission staff attempted to contact Ms Santleben by

telephone and spoke with a young male who confirmed that the number belonged to Ms

Santleben but that she was currently unavailable. A message was left for Ms Santleben to

contact the Fair Work Commission.

[7] On 28 January 2016, Commission staff attempted to contact Ms Santleben and a voice

message was left for her, requesting her to contact the Commission regarding her application.
[2016] FWC 614

[8]        To date, Ms Santleben has not contacted the Commission in response to any of the

requests to do so.

[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]      In the circumstances of this matter, I am satisfied Ms Santleben has not completed the

required minimum employment period and her application has no reasonable prospects of

success.

[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]      Consequently, the application is dismissed under section 587(1)(c) of the Act. An

Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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