Colleen Hraiki v Mni Electrospark All Trades Services Pty Ltd T/A Mni Electrospark All Trades Services Pty Ltd

[2016] FWC 8598

[2016] FWC 8598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colleen Hraiki
v
MNI Electrospark All Trades Services Pty Ltd T/A MNI Electrospark All Trades Services Pty Ltd
(U2016/11294)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 12 September 2016, Ms Colleen Hraiki made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Hraiki advised that she commenced employment with MNI Electrospark All Trades Services Pty Ltd on 25 May 2016 and that her dismissal took effect on 22 August 2016.

[3] On 13 September 2016, a Fair Work Commission staff member spoke with Ms Hraiki about the fact it appeared she had not served the minimum employment period and that the application fee had not been paid. Ms Hraiki confirmed she had only been employed for three months and requested she be given until the following morning to decide what she wanted to do with the matter.

[4] On 15 September 2016, correspondence was sent to Ms Hraiki advising that payment of the application fee had not been made and that in the absence of any advice from her within 14 days, her application may be dismissed.

[5] On 29 September 2016, correspondence was sent to Ms Hraiki noting that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Hraiki to file any documents and evidence to support her having served the minimum employment period within 14 days. It was advised that in the event no documents or evidence were filed, her application may be dismissed.

[6] On 11 October 2016, an attempt was made to contact Ms Hraiki via telephone and a voicemail message was left.

[7] On 19 October 2016, further correspondence was sent to Ms Hraiki allowing a further 14 days in which to reply. She was advised unless advice was received from her within that period, her application would be dismissed.

[8] To date, Ms Hraiki has not replied to any correspondence.

[9] 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.

[10] 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.”

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

[12] 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.”

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

DEPUTY PRESIDENT

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