Vanessa Oram v Quest Townsville on Eyre St

[2016] FWC 7071

[2016] FWC 7071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Oram
v
Quest Townsville on Eyre St
(U2016/10392)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 19 August 2016, Ms Vanessa Oram made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Oram advised her dismissal took effect on 3 August 2016, however, she did not provide a precise date for when she commenced working at Quest Townsville on Eyre St (Quest).

[3] On 19 August 2016, the Fair Work Commission (the Commission) wrote to Ms Oram to advise the unfair dismissal application was incomplete, in particular question 1.1, regarding her employment commencement date. The letter noted that Ms Oram had also filed an application under section 365 of the Act and she would need to elect which application she intended to pursue.

[4] On 22 August 2016, Ms Oram telephoned the Commission and advised she wished to pursue the application for unfair dismissal remedy and would re-submit a completed form.

[5] On 5 September 2016, the Commission attempted to contact Ms Oram via telephone, however this was unsuccessful and a voicemail message was left. A letter was sent the same day advising her application remained incomplete and unpaid and that in the absence of any advice from her within 14 days, the application may be dismissed.

[6] On 19 September 2016, the Commission left a further voicemail for Ms Oram.

[7] On 22 September 2016, the Commission telephoned Ms Oram who advised she thought she had worked at Quest for just under six months. The minimum employment period required to be served under the Act was explained to Ms Oram. Ms Oram requested a few days in order to submit a completed application form. Ms Oram was informed that if the Commission did not receive a completed application form by 29 September 2016, the matter will be closed.

[8] On 4 October 2016, the Commission contacted Mr Andy Hodgson, the Director of Quest Townsville, who advised Ms Oram’s commencement date with Quest was 14 March 2016 and dismissal occurred on 3 August 2016.

[9] On 4 October 2016, the Commission wrote to Ms Oram repeating the dates provided by Mr Hodgson and requested she complete an Outline of Argument and Statement of Evidence to assist the Commission in making a determination.

[10] On 5 October 2016, Ms Oram emailed the Commission as follows:

“Is correct. 14th march to 3rd august.”

[11] On 5 October 2016, the Commission contacted Ms Oram who advised she will send an email advising what she wants to do.

[12] On 18 October 2016, the Commission attempted to contact Ms Oram and a voicemail message was left requesting she contact the Commission.

[13] To date, Ms Oram has not contacted the Commission.

[14] 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.

[15] 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.”

[16] 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.”

[17] In the circumstances of this matter, I am satisfied Ms Oram has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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