Alesia Ferguson v Mildura Grand Hotel T/A Quality Hotel Mildura Grand

[2015] FWC 1758

[2015] FWC 1758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alesia Ferguson
v
Mildura Grand Hotel T/A Quality Hotel Mildura Grand
(U2015/3156)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MARCH 2015

Application for relief from unfair dismissal.

[1] On 17 February 2015, Ms Alesia Ferguson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Ferguson advised that she commenced employment with Mildura Grand Hotel on 28 July (no year given) and that her dismissal took effect on 26 January 2015.

[3] On 18 February 2015, correspondence was sent to Ms Ferguson 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 Ferguson to advise the Fair Work Commission within 14 days whether she wished to proceed with her application. That correspondence advised Ms Ferguson that if she did not reply, her application may be dismissed.

[4] Ms Ferguson did not reply to that correspondence.

[5] Further correspondence was sent to Ms Ferguson on 10 March 2015, seeking confirmation that she was employed by Mildura Grand Hotel between 28 July 2014 and 26 January 2015. Ms Ferguson was asked to advise the Commission by noon on 13 March 2015 if that information was not correct. She was further advised that if she did not respond to the email, her application would be dismissed.

[6] Ms Ferguson did not reply to that correspondence.

[7] On 10 March 2015, Mildura Grand Hotel confirmed in an email that Ms Ferguson commenced employment on 28 July 2014. A copy of that email was provided to Ms Ferguson at the same time.

[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:

“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] In the circumstances of this matter, I am satisfied Ms Ferguson has not completed the required minimum employment period and her application has no reasonable prospects of success.

[11] 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.”

[12] 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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