Celia Hartnett v Fantastic Cleaners

[2013] FWC 8060

[2013] FWC 8060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Celia Hartnett
v
Fantastic Cleaners
(U2013/10501)

COMMISSIONER WILSON MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 13 June 2013, Mrs Celia Hartnett made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs Hartnett advised that she commenced employment with Fantastic Cleaners on 15 April 2013 and that her dismissal took effect on 25 May 2013.

[3] On 18 June 2013, correspondence was sent to Mrs Hartnett pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Mrs Hartnett to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application. On 8 July 2013 and 13 September 2013 further correspondence was sent to Mrs Hartnett requesting that she advise the Commission whether she wished to proceed with the application or file a Notice of Discontinuance.

[4] To date, Mrs Hartnett did not reply to that correspondence.

[5] 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.

[6] 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.

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

[8] 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.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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