Andy Lee v Dai Rong Cheng Pty Ltd T/A Kinsei Sushi

[2014] FWC 7037

[2014] FWC 7037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andy Lee
v
Dai Rong Cheng Pty Ltd T/A Kinsei Sushi
(U2014/11069)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 22 July 2014, Mr Andy Lee made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Lee advised that he commenced employment with Dai Rong Cheng Pty Ltd T/A Kinsei Sushi on 31 March 2014 and that his dismissal took effect on 16 July 2014.

[3] On 1 August 2014, correspondence was sent to Mr Lee pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Lee to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 5 September 2014, further correspondence was sent to Mr Lee allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] Further attempts to telephone Mr Lee were made on 11 and 18 August 2014 and 3 and 19 September 2014.

[6] To date, Mr Lee did not advise whether he wished to proceed with his application.

[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] In the circumstances of this matter, I am satisfied Mr Lee has not completed the required minimum employment period and his application has no reasonable prospects of success.

[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] 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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