Brittany Vitkus v SkyCity Darwin Pty Ltd

[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

Brittany Vitkus sought relief from an unfair dismissal against her former employer, SkyCity Darwin Pty Ltd. The dispute centred around whether Ms. Vitkus had completed the required minimum period of continuous employment before her dismissal could be deemed unfair. The matter was heard in the Fair Work Commission. The key legal issue before the Commission was whether Ms. Vitkus had fulfilled the necessary employment period stipulated under the Fair Work Act 2009 (Cth) to claim unfair dismissal. The Commission considered the definition of "employee" under the Act and whether Ms. Vitkus met the threshold of 12 months of continuous service.

In its decision, the Commission examined the period Ms. Vitkus had worked for SkyCity Darwin Pty Ltd and concluded that she had not served the requisite 12 months of continuous employment at the time of her dismissal. The Commission noted that her employment was terminated before she had completed the required period. As such, the Commission found that Ms. Vitkus did not qualify for the protection against unfair dismissal under the Act. The Commission held that the dismissal was not unfair because it did not contravene the provisions of the Act, given the incomplete employment period.

Consequently, the Fair Work Commission dismissed Ms. Vitkus' application for relief from unfair dismissal. The Commission emphasised that the statutory requirements for unfair dismissal claims were not met in this instance due to the insufficient employment duration. No orders were made in favour of Ms. Vitkus.

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