Ursula Seck v St. Johns Community Care Ltd

[2018] FWC 3821

[2018] FWC 3821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ursula Seck
v
St. Johns Community Care Ltd
(U2018/5221)

COMMISSIONER BISSETT MELBOURNE, 28 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 20 May 2018, Mrs Ursula Seck made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Seck did not pay the required fee.

[3] In her application, Mrs Seck advised that she commenced employment with St. Johns Community Care Ltd (St Johns) on 5 March 2018 and that her dismissal took effect on 14 May 2018.

[4] On 21 May 2018, the Fair Work Commission (the Commission) attempted to contact Mrs Seck by telephone to discuss her application, however there was no answer and a voicemail message was left. On the same day, email correspondence was sent to Mrs Seck advising that on the basis of the information contained in the application, she had not served the minimum employment period required by the Act. Mrs Seck was to file in the Commission any documents or evidence to support her claim of having served the minimum employment period within 14 days. It was further noted that the application had been made without payment of the application fee. Mrs Seck was requested to pay the fee or otherwise apply to have the fee waived and an application for fee waiver was provided. The correspondence advised that in the absence of Mrs Seck contacting the Commission within 14 days, her application may be dismissed.

[5] Mrs Seck sent an email to the Commission on 21 May 2018 requesting that the Commission disregard her emailed application of 20 May 2018, and that an amended application had been posted which she expected to arrive at the Commission within 24 hours. The following day, Mrs Seck again emailed the Commission advising that her whole application and important attachments were sent via express post.

[6] On 24 May 2018, Mrs Seck’s posted application was received by the Commission. The amended application also stated that Mrs Seck commenced employment with St Johns on 5 March 2018 and that her dismissal took effect on 14 May 2018. There was no accompanying application for fee waiver filed and nor was the application fee paid.

[7] On 4 June 2018, further correspondence was sent to Mrs Seck, allowing a further seven days in which to reply to the direction contained in the correspondence of 21 May 2018. The correspondence noted that if no response was received within seven days, the application would be determined on the material currently before the Commission.

[8] On 5 June 2018, Mrs Seck sent an email to the Commission advising that she had sent all material to the Commission via express post and to let her know if anything was missing. On the same day, the Commission made a final attempt to contact Mrs Seck by telephone regarding her application. As Mrs Seck had indicated on her application form that she would require a German interpreter at any conciliation, conference or hearing, the arrangements were made for the Translating and Interpreting Service (TIS) to telephone Mrs Seck. TIS advised Mrs Seck did not answer its call and it had left a voicemail message for her to call TIS to then be transferred to the Commission in relation to her unfair dismissal application.

[9] To date, Mrs Seck has not paid the required fee or provided material in relation to the minimum employment period requirement under the Act.

[10] 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.

[11] 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.

[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] Having regard to the circumstances of this matter, I am satisfied that as Mrs Seck has not completed the required minimum employment period, her application has no reasonable prospects of success. Further, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR608529>