Elizabeth Kane v N.R.W Holdings T/A N.R.W Civil & Mining

[2016] FWC 736

[2016] FWC 736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Kane
v
N.R.W. Holdings T/A N.R.W. Civil & Mining
(U2016/3728)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 11 January 2016, Ms Elizabeth Kane made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Kane advised that she commenced employment with N.R.W. Holdings T/A N.R.W. Civil & Mining in mid July 2015 and that her dismissal took effect on 25 November 2015.

[3] On 12 January 2016, correspondence was sent to Ms Kane 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 Kane to file with the Commission an outline of argument: minimum employment period and statement of evidence along with an outline of argument: extension of time and statement of evidence by close of business on 21 January 2016.

[4] Commission staff spoke with Ms Kane on 22 January 2016 in relation to the filing of her materials who advised that she had not received the correspondence dated 12 January 2016. Commission staff advised Ms Kane that if she wanted to proceed with her application, she would need to request an extension of time to file her materials.

[5] On 24 January 2016, Ms Kane filed submissions in support of her minimum employment period and extension of time with the Commission.

[6] Ms Kane submitted that her previous employment with N.R.W. should count as continuous service when calculating her minimum employment period. Ms Kane submitted that she had been employed by N.R.W. from October 2013 to February 2015 until that contract had finished and that she had been stood down without pay until July 2015 when her next contract commenced.

[7] The Commission is not required to hold a hearing unless there are disputed facts.

[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] While Ms Kane was previously employed by N.R.W., her material makes it clear that her employment ended in February 2015 at the conclusion of that contract. She subsequently entered into a separate contract in July 2015.

[11] An employee’s continuous service will be broken if an employee is dismissed or resigns and is then reengaged. Ms Kane has provided no evidence to support a finding that she remained employed in the period between February and July.

[12] In the circumstances of this matter, I am satisfied Ms Kane has not completed the required minimum employment period 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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