Divya Kundra v American Express Australia Limited

[2020] FWC 662

[2020] FWC 662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Divya Kundra
v
American Express Australia Limited
(U2019/14471)

DEPUTY PRESIDENT DEAN SYDNEY, 10 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 20 December 2019, Ms Divya Kundra made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Kundra advised that she commenced employment with American Express Australia Limited on 24 June 2019 and she was notified of her dismissal on 20 December 2019.

[3] 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.

[4] 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.

[5] On 23 December 2019, the Commission contacted Ms Kundra by telephone and advised that on the basis of the information contained in the application, she had not served the minimum employment period.

[6] Also on 23 December, correspondence was sent to Ms Kundra and her representative, Mr Anoop Alphonse, pointing out the same. The correspondence required Ms Kundra or Mr Alphonse to advise the Commission within 14 days whether they wished to proceed with the application.

[7] On 15 January 2020, further correspondence was sent to Ms Kundra allowing a further 7 days in which to reply, after which time the application would be dismissed.

[8] On 6 February, the Commission attempted unsuccessfully to contact both Ms Kundra and Mr Alphonse by telephone.

[9] To date, neither Ms Kundra nor Mr Alphonse have responded.

[10] 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.

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

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

DEPUTY PRESIDENT

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