Brittany Vitkus v SkyCity Darwin Pty Ltd

[2013] FWC 6153

[2013] FWC 6153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brittany Vitkus
v
SkyCity Darwin Pty Ltd
(U2013/10662)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 AUGUST 2013

Application for relief from unfair dismissal dismissed - minimum employment period not served.

[1] On 19 June 2013, an application for relief from unfair dismissal was lodged under s.394 of the Fair Work Act 2009 by Ms Brittany Vitkus. Ms Vitkus’ employment was terminated by SkyCity Darwin Pty Ltd trading as SkyCity Darwin (SkyCity).

[2] Ms Vitkus’ Form F2 - Application for Unfair Dismissal Remedy states that her employment commenced on 21 January 2013 and was terminated on 30 May 2013.

[3] SkyCity objected to Ms Vitkus’ application and submit that her employment was terminated prior to Ms Vitkus completing the minimum employment period and she is not able to make the application.

[4] Correspondence was sent to Ms Vitkus advising that, on the basis of the information contained in her application, she had not served the minimum employment period. Ms Vitkus advised the Fair Work Commission that despite this information and SkyCity’s objection, she wished to proceed with her application.

[5] On 1 August 2013, directions were issued to the parties to file submissions and evidentiary material in relation to the preliminary issue. I advised that if there were no contested facts, the matter would be determined on the papers.

[6] Ms Vitkus disputed the date of her termination. While accepting that she was verbally told on 29 May that her employment was terminated she did not receive written notice of the termination of her employment until 3-4 days after that. I am prepared for the purposes of this decision to assume that Ms Vitkus did not receive written notice of the termination of her employment until 4 June 2013. However, even assuming that is the date of termination, Ms Vitkus had not been employed for 6 months when the dismissal took effect.

[7] Section 593(1) of the Act provides that the Commission is not required to hold a hearing unless there are contested facts. As I have determined to resolve the contested facts in favour of the Applicant the Commission is not required to hold a hearing.

[8] While Ms Vitkus wants a hearing of her application, her application has no prospects of success and SkyCity should not be put to the expense and inconvenience of defending a claim that cannot succeed.

[9] As it is not disputed that Ms Vitkus had not been employed for 6 months, I have decided to determine this matter on the papers.

[10] The Act provides that a person is not protected from unfair dismissal unless he or she has been employed for 6 months or 12 months if the employer is a small business. 1

[11] At the time that Ms Vitkus’ was notified of her dismissal, SkyCity employed 1186 staff. SkyCity is not a small business.

[12] I am satisfied that Ms Vitkus did not complete the prescribed minimum employment period (of at least six months) and is therefore not protected from unfair dismissal.

[13]
Consequently, Ms Vitkus’ application for relief from unfair dismissal is dismissed. An order giving effect to this decision will be issued shortly.

DEPUTY PRESIDENT

 1   Section 382 and 383 of the Act

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540765>