Shantal Clarke v Chemist Warehouse Caloundra T/A Chemist Warehouse

[2018] FWC 6851

[2018] FWC 6851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shantal Clarke
v
Chemist Warehouse Caloundra T/A Chemist Warehouse
(U2018/7790)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 NOVEMBER 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 29 July 2018, Miss Shantal Clarke made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application, Miss Clarke advised that she commenced employment with Chemist Warehouse Caloundra T/A Chemist Warehouse on 5 June 2018. Miss Clarke further advised that she was notified of her dismissal on 26 July 2018 and that it took effect the same day.

[3] On 30 July 2018, the Commission attempted to telephone Miss Clarke, which was unsuccessful and a voicemail was left requesting her return call. Following this, email correspondence was sent to Miss Clarke’s nominated email address advising her that on the basis of the information provided in the application, she had not served the minimum employment period required by the Act. The correspondence directed Miss Clarke to file in the Commission, within 14 days, any documents or evidence to support her claim of having served the minimum employment period.

[4] On 6 August 2018, the Commission made another attempt to telephone Miss Clarke, which she did not answer and a voicemail was left requesting her return call.

[5] On 23 October 2018, the Commission made a final attempt to telephone Miss Clarke. Again, this was unsuccessful and a voicemail was left requesting her return call. Following this, final correspondence was emailed to Miss Clarke’s nominated email address warning that, unless she contacted the Commission within seven days with an explanation as to why she had not responded to the direction contained in the correspondence dated 30 July 2018, the application would be determined based on the material before the Commission.

[6] To date, Miss Clarke has not responded to the Commission’s correspondence.

[7] 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.

[8] 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.”

[9] 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.”

[10] Having regard to the circumstances of this matter, I am satisfied that as Miss Clarke has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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