Vanessa Davila v Transport Sydney Trains

[2019] FWC 725

[2019] FWC 725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Davila
v
Transport Sydney Trains
(U2018/12776)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 12 December 2018, Miss Vanessa Davila 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 (Form F2), Miss Davila advised that she commenced employment with Transport Sydney Trains on 6 August 2018 and that she was notified of her dismissal on 31 August 2018, with the dismissal taking effect on the same day.

[3] Later on 12 December 2018, the Commission sent email correspondence to Miss Davila’s nominated email address advising that her application indicated she had not been employed for the minimum employment period under the Act. The correspondence directed Miss Davila to file in the Commission within 14 days any documents or evidence to support her claim that she had served the minimum employment period.

[4] On 8 January 2019, the Commission attempted to contact Miss Davila through the telephone number provided on her Form F2. The Commission’s records indicate that the telephone call was unable to be completed. Following this, further email correspondence was sent to Miss Davila’s nominated email address noting 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 12 December 2018, the application would be determined on the material currently before the Commission.

[5] On 15 January 2019, as no response had been received from Miss Davila, the Commission attempted to telephone her, however she was unable to be contacted.

[6] On 21 January 2019, my chambers sent final correspondence to Miss Davila’s nominated email and postal addresses. The postal correspondence was dispatched via express post. The correspondence noted that to date, nothing had been received from Miss Davila and that on the material currently before the Commission, it appeared she had not served the minimum employment period required by the Act and therefore, her application appeared to be invalid. The correspondence invited Miss Davila to provide documents or evidence that support her claim of serving the minimum employment period by no later than 4:00pm on 5 February 2019 and warned that if nothing was received, her application would be dismissed. A review of the express post tracking ID indicates that the postal correspondence was delivered on 24 January 2019.

[7] To date, the Commission has not received any response from Miss Davila.

[8] 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.

[9] 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.”

[10] 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.”

[11] Having regard to the circumstances of this matter, I am satisfied that as Miss Davila 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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