Vicky Emmanuel v O23 Corporate Pty Ltd T/A Talkbiz

[2017] FWC 159

[2017] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicky Emmanuel
v
O23 Corporate Pty Ltd T/A Talkbiz
(U2016/13937)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 22 November 2016, Ms Vicky Emmanuel made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Emmanuel advised that she commenced employment with O23 Corporate Pty Ltd T/A Talkbiz on 6 July 2015 and that her dismissal took effect on 6 August 2015.

[3] On 22 November 2016, correspondence was sent to Ms Emmanuel pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Emmanuel 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. Ms Emmanuel was advised in the absence of any advice from her, her application may be dismissed.

[4] On 30 November 2016, an attempt to telephone Ms Emmanuel was made and a “voice to text” message was left, seeking a return call urgently.

[5] On 9 December 2016, Ms Emmanuel made contact with the Commission where she was advised of the minimum employment period issue. Ms Emmanuel indicated she was going to make enquiries with the Fair Work Ombudsman. On the same date, further correspondence was sent to Ms Emmanuel allowing a further seven days in which to reply, after which time, Ms Emmanuel was advised the application would be determined based on the material currently before the Commission.

[6] To date, Ms Emmanuel has not replied to the Commission’s correspondence.

[7] 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.

[8] 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.

[9] 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.

[10] In the circumstances of this matter, I am satisfied Ms Emmanuel 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

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