Valeria Gallardo Ramos v Reliance (Aus) Pty Ltd

[2023] FWC 3003

[2023] FWC 3003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Valeria Gallardo Ramos
v

Reliance (Aus) Pty Ltd

(U2023/8591)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 NOVEMBER 2023

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 8 September 2023, Ms Valeria Gallardo Ramos (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. Ms Ramos’ Form F2 – Unfair Dismissal Application (Form F2) was incomplete, in that the start date of her employment with Reliance (Aus) Pty Ltd (Respondent) was not provided, and Ms Ramos had not paid the required application fee, nor lodged a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 13 September 2023, the Commission emailed correspondence to Ms Ramos’ nominated email address requesting that she provide further details as the application was incomplete. It was also requested that Ms Ramos make payment of the application fee or complete a Form F80. The correspondence advised that if Ms Ramos’ application was not completed within 14 days, the application may be dismissed.  An SMS notification was also sent to Ms Ramos’ nominated telephone number, requesting that she contact the Commission.

1. On 28 September 2023, the Commission contacted Ms Ramos on her nominated telephone number to confirm the required information and obtain payment of the application fee. Ms Ramos advised that she would read the email dated 13 September 2023 and respond.  As the required information was not received, on 17 October 2023 the Commission attempted to contact Ms Ramos on her nominated telephone number. Ms Ramos did not answer the call and there was no option to leave a voicemail message. An attempt to call Ms Ramos’ nominated representative also went unanswered and a voicemail was left for the nominated representative to contact the Commission by close of business. The nominated representative later advised that he was not acting for Ms Ramos.

1. The Commission contacted Ms Ramos on her nominated telephone number on 24 October 2023. It was explained to Ms Ramos that, if she had not served minimum employment period, she is not eligible to make an application for an unfair dismissal remedy. Ms Ramos advised that she had worked for the Respondent for a ‘couple months’ and would review her paperwork and contact the Commission with her employment dates. Ms Ramos was advised that if she does not provide details showing that she met the minimum employment period and a complete Form F80, or pay the application fee, by close of business, her application may be dismissed.  To date, Ms Ramos has not provided the necessary details, nor paid the application fee or filed a Form F80, as requested.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment.

1. Section 383 of the FW Act sets out the minimum employment period as follows:

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.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

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 prospect of success.

1. As the material before the Commission indicates Ms Ramos has not completed the required minimum employment period under the FW Act, I am satisfied the application has no reasonable prospect of success. In considering all the circumstances, I am also satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. As such, the application is dismissed under s.587(1)(a) and (c) of the FW Act. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR768339.

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<PR768338>