Cherie Lindfield v S & T Hyde Pty Ltd T/A Teddy Bear Corner Childcare Centre

[2016] FWC 4897

[2016] FWC 4897

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cherie Lindfield
v
S & T Hyde Pty Ltd T/A Teddy Bear Corner Childcare Centre
(U2016/2891)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JULY 2016

Application for relief from unfair dismissal.

[1] On 17 June 2016, Ms Cherie Lindfield made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Ms Lindfield advised that she commenced employment with S & T Hyde Park Pty Ltd trading as Teddy Bear Corner Childcare Centre on 7 December 2015 and that she was notified of her dismissal on 30 May 2016.

[3] On 1 July 2016, correspondence was sent to Ms Lindfield pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Lindfield to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 14 July 2016, Ms Lindfield provided materials indicating she wished to proceed with her application. These materials confirmed the information in her application regarding the date she commenced employment and the date she was notified of her dismissal. She advised that she had 10 days unpaid leave during this time.

[5] On 18 July 2016, my Associate wrote to the Respondent’s representative asking it to advise Chambers of Ms Linfield’s commencement date, finishing date and any periods of unpaid personal leave.

[6] On 19 July 2016, the Respondent’s representative confirmed Ms Lindfield commenced employment with the Respondent on 7 December 2015, was given notice of her dismissal on 30 May 2016 and paid one week’s wages in lieu of notice. The Respondent indicated Ms Lindfield was absent from work on unpaid personal leave on 4 and 22 January 2016, 11 April 2016, and 9, 25 and 27 May 2016. It submitted that it was a small business.

[7] On 20 July 2016, Ms Lindfield’s representative wrote to Chambers advising that Ms Lindfield was engaged to undertake work for the Respondent on a one day a week contract from 15 October 2015 and full time work experience from 2 November 2015. My Associate wrote to Ms Lindfield’s representative seeking evidence that these periods of employment involved a contract of employment. In further correspondence to the Commission, Ms Lindfield’s representative outlined that these periods were undertaken as unpaid work experience towards Ms Lindfield’s qualification and indicated a contract of employment was not in place until the period commencing 7 December 2015.

[8] 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.

[9] 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.”

[10] I do note Ms Lindfield undertook a period of unpaid work experience prior to the agreed commencement date of 7 December 2015, however a period of does not count towards an employee’s period of employment.

[11] There is no factual dispute between the parties about the starting date of Ms Lindfield’s employment contract and the date Ms Lindfield was given notice of dismissal. Given the dates, it was not necessary to determine if this was a small business. It was therefore not necessary to conduct a hearing or conference.

[12] In the circumstances of this matter, I am satisfied Ms Lindfield has not completed the required minimum employment period of 6 months and her application has no reasonable prospects of success.

[13] 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.”

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

DEPUTY PRESIDENT

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