Isabella St John v Lost Boys T/A Lost Boys Fortitude Valley

[2016] FWC 480

[2016] FWC 480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Isabella St John
v
Lost Boys T/A Lost Boys Fortitude Valley
(U2015/15306)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 1 December 2015, Ms St John made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms St John advised that she commenced employment with Lost Boys on or around 11 June 2015 and that her dismissal took effect on 24 November 2015.

[3] On 1 December 2015, correspondence was sent to Ms St John 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 St John to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] Ms St John did not reply to that correspondence.

[5] On 16 December 2015, further correspondence was sent to Ms St John, advising that unless she contacted the Commission within seven days and provides an acceptable explanation of why she did not respond to the direction contained in the first letter, her application would be determined without further reference to her.

[6] On 24 December 2015 and 12 January 2016, there were attempts to telephone Ms St John, however they were unsuccessful.

[7] Final attempts to contact Ms St John were made on 14 January 2016. A voicemail was left, asking that Ms St John return the Commission’s call. A text message was also sent, advising that unless Ms St John contacted my chambers by 5.00pm on 21 January 2016, her application would be dismissed.

[8] To date, there has been no response from Ms St John.

[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 St John 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 section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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