Sonya Nutt v Scoopon Pty Ltd T/A Scoopon

[2017] FWC 6752

[2017] FWC 6752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonya Nutt
v
Scoopon PTY LTD T/A Scoopon
(U2017/12352)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 21 November 2017, Miss Sonya Nutt made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Nutt advised she commenced employment with Scoopon on 3 July 2017 and that her dismissal took effect on 24 August 2017. It is noted Miss Nutt’s application was not filed within 21 days after the dismissal took effect, as required by the Act. 1

[3] On 21 November 2017, correspondence was sent to Miss Nutt confirming that based on the information contained in the application, it appeared she had not served the minimum employment period. The correspondence required Miss Nutt to file in the Fair Work Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. Miss Nutt was advised in the absence of any material being received, her application may be dismissed. An attempt to telephone Miss Nutt was also made on 21 November 2017, with a voicemail being left seeking a return call.

[4] On 5 December 2017, the Commission again left a voicemail for Miss Nutt regarding her application and the minimum employment period requirement under the Act. A follow up email was sent to Miss Nutt’s nominated email address which advised that unless contact was made with the Commission within seven days with an explanation as to why she had not responded to the direction contained in the first letter, the application would be determined based on the material before the Commission.

[5] As no response had been received, on 13 December 2017, a final attempt to contact Miss Nutt via telephone was made and a voicemail was left.

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

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied Miss Nutt 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

 1   Fair Work Act 2009 (Cth) s 394(2).

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