Cheryl Dale v McConnell Dowell Ohl JV T/A Obrascov Huarte Lainsa

[2015] FWC 2611

[2015] FWC 2611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryl Dale
v
McConnell Dowell OHL JV T/A Obrascov Huarte Lainsa
(U2015/3915)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 APRIL 2015

Application for relief from unfair dismissal.

[1] On 12 March 2015, Mrs Cheryl Dale made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mrs Dale advised that she commenced employment with McConnell Dowell OHL JV (McConnell) on 10 November 2014 and that she was notified of her dismissal on 25 February 2015, with the dismissal taking effect on 27 February 2015.

[3] On 16 March 2015, in error, the matter was listed for a conciliation conference. Notification that the conciliation was cancelled was sent on 31 March 2015.

[4] On 31 March 2015, correspondence was sent to Mrs Dale 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 Dale to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[5] On 8 April 2015, Mrs Dale wrote to the Commission advising she wished to continue with her application. Her email did not provide any evidence that she had served the minimum employment period.

[6] On 15 April 2015, I caused email correspondence to be sent to Mrs Dale asking that she provide documentary evidence that she had served the minimum employment period by noon on 22 April 2015.

[7] On 15 April 2015, Mrs Dale responded to the correspondence advising that she cannot prove that she was employed with McConnell for more than six months.

[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:

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

[11] 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.”

[12] 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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