Charanjeet Kaur v Mandurah's Gateway to India Pty Ltd ATF Scusi Restaurant Trust

[2013] FWC 6074

[2013] FWC 6074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charanjeet Kaur
v
Mandurah’s Gateway to India Pty Ltd ATF Scusi Restaurant Trust
(U2013/10619)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 17 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mrs Charanjeet Kaur (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by Mr Kaur notes that he commenced employment with Mandurah's Gateway to India Pty Ltd ATF Scusi Restaurant Trust (the Respondent) on 20 September 2012 and his dismissal took effect on either 10 December 2012 or 13 January 2013.

[3] On 20 June 2013, correspondence was sent to Mr Kaur pointing out that on the basis of the information contained in the Form 2, he had not served the minimum employment period according to the dates noted on the Application. The correspondence required Mr Kaur to advise the Fair Work Commission (the Commission) in 14 days whether he wished to proceed with his Application.

[4] On 8 July 2013, further correspondence was sent to Mr Kaur requiring him to advise the Commission within 14 days whether he wished to proceed with his Application. To date no response has been received.

[5] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[6] Section 383 of the Act provides:

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] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period.

[9] Consequently, I have decided to dismiss the application pursuant to s.587 of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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