Debin Dong v Carbridge Pty Ltd T/A Easy Cart

[2014] FWC 6431

[2014] FWC 6431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debin Dong
v
Carbridge Pty Ltd T/A Easy Cart
(U2014/10620)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 4 July 2014, Mr Debin Dong made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Dong advised that he commenced employment with Carbridge Pty Ltd T/A Easy Cart on 31 January 2014 and that his dismissal took effect on 16 June 2014 and he was notified of his dismissal on 12 June 2014.

[3] On 10 July 2014, correspondence was sent to Mr Dong pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Dong to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 20 August 2014, further correspondence was sent to Mr Dong allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Dong did not reply to that correspondence.

[6] 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.

[7] 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.”

[8] In the circumstances of this matter, I am satisfied Mr Dong has not completed the required minimum employment period and his application has no reasonable prospects of success.

[9] 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.”

[10] 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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