Finehika Senituli v Blue Hills Manor

[2018] FWC 1735

[2018] FWC 1735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Finehika Senituli
v
Blue Hills Manor
(U2018/1945)

DEPUTY PRESIDENT DEAN SYDNEY, 4 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 26 February 2018, Ms Finehika Senituli made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Senituli’s application states that she commenced employment with Blue Hills Manor (the respondent) on 13 August 2017 and that her dismissal took effect on 21 February 2018.

[3] On 7 March 2018, the respondent filed the Form F3 – Employers Response, objecting to the application on the grounds that Ms Senituli had not met the minimum employment period. It was the respondent’s submission that Ms Senituli’s start date was 10 October 2017 and that her dismissal took effect on 16 February 2018, a period of less than 6 months.

[4] On 9 March 2018, correspondence was sent to Ms Senituli indicating that, based on the information contained in the Employers Response, it appeared she may not have served the minimum employment period. The correspondence required Ms Senituli to file a statement within seven days to support her claim of having served the minimum employment period.

[5] On 13 March 2018, Ms Senituli phoned the Commission and acknowledged that she had not been employed for 6 months. She was asked to advise of her intention with regards to her application by no later than close of business Friday 16 March 2018.

[6] On 22 and 23 March 2018, final attempts to contact Ms Senituli by telephone were made.

[7] To date, Ms Senituli has not responded in writing to any of the Commission’s correspondence.

[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] 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 Senituli has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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