Chantell Kinnane v Total Work Solutions

[2019] FWC 7319

[2019] FWC 7319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chantell Kinnane
v
Total Work Solutions
(U2019/10716)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 23 OCTOBER 2019

Application for relief from unfair dismissal – minimum employment period not met – non-responsive applicant - application dismissed

[1] On 23 September 2019, Ms Chantell Kinnane made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Ms Kinnane advised that she commenced employment with Total Work Solutions on 9 August 2019 and that she was notified of her dismissal on 23 September 2019, with the termination having effect that same day.

[3] On 25 September 2019, the Fair Work Commission (the Commission) contacted Ms Kinnane by telephone to discuss the minimum employment period. Ms Kinnane confirmed the above dates of employment. The Commission representative sent a follow up letter that confirmed the employment dates, and invited Ms Kinnane to discontinue her application by filing a notice of discontinuance. Alternatively, Ms Kinnane was given the option to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 14 October 2019, further correspondence was sent to Ms Kinnane allowing a further 7 days in which to reply, after which time the application may be dismissed.

[5] On 14 October 2019 and 21 October 2019, the Commission made unsuccessful attempts to contact Ms Kinnane by telephone in relation to the correspondence of 25 September, and 14 October 2019. On each occasion voicemail messages were left asking Ms Kinnane to contact the Commission.

[6] To date, no response has been received from Ms Kinnane.

[7] Section 382 of the FW 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 FW 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 I am satisfied Ms Kinnane has not completed the required minimum employment period.

[10] Section 587(1) of the FW 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] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act as it has no reasonable prospect of success. An Order to this effect will be issued.

DEPUTY PRESIDENT

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