Alexis Bright v Hitachi Construction Machinery

[2015] FWC 7696

[2015] FWC 7696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexis Bright
v
Hitachi Construction Machinery
(U2015/10483)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 NOVEMBER 2015

Application for relief from unfair dismissal

[1] On 9 September 2015, Ms Alexi Bright made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Bright advised that she commenced employment with Hitachi Construction Machinery on 28 April 2015 and that her dismissal took effect on 21 August 2015.

[3] On 14 September 2015, correspondence was sent to Ms Bright 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 Bright to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

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

[5] On 25 September 2015, a further email was sent to Ms Bright regarding non compliance, requesting Ms Bright contact the Commission by close of business 1 October 2015. Ms Bright did not contact the Commission.

[6] On October 6 2015, a follow up email was sent to Ms Bright regarding non compliance, requesting Ms Bright contact the Commission.

[7] On October 16 2015, the Commission spoke to Ms Bright by telephone regarding non compliance. Ms Bright indicated she would email chambers requesting an extension of time for the filing of submissions.

[8] Ms Bright contacted the Commission on 16 October 2015 by email apologising for the delay and advising the documentation requested would be sent to the Commission by Monday 12 October 2015. No documentation was received by the Commission.

[9] On October 20 2015, the Commission contacted Ms Bright by telephone and was advised documentation would be sent through that evening. Ms Bright sent an email to the Commission on 21 October 2015, again advising the documentation would be sent through that evening.

[10] Ms Bright did not forward any documentation to the Commission or provide the necessary details as requested.

[11] 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.

[12] 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.

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

[14] 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.

[15] 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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