Jasmine Bax v The Coffee House Cafe

[2018] FWC 5653

[2018] FWC 5653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasmine Bax
v
The Coffee House Cafe
(U2018/7197)

DEPUTY PRESIDENT DEAN SYDNEY, 7 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 11 July 2018, Ms Jasmine Bax made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Bax’s application states that she commenced employment with The Coffee House Cafe on 7 September 2018 and that her dismissal took effect on 23 June 2018.

[3] On 26 July 2018, The Coffee House Cafe filed an Employers Response (form F3) objecting to the application on the grounds that Ms Bax had not met the minimum employment period. The Coffee House Café submits that it is a small business with fewer than 15 employees at the time of Ms Bax’s termination.

[4] On 23 August 2018, correspondence was sent to Ms Bax indicating that, based on the information contained in the Employer Response, it appeared she may not have served the minimum employment period. The correspondence required Ms Bax to file a statement within seven days to support her claim of having served the minimum employment period.

[5] On 31 August 2018, correspondence was sent to Ms Bax noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Ms Bax was given until 4pm, 3 September 2018, to respond. Ms Bax was advised that in the absence of any material being received, her application may be dismissed.

[6] On 5 September 2018, Ms Bax was contacted by telephone and advised that unless a statement was received that day her application would be dismissed.

[7] To date, Ms Bax has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person 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 Bax 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 that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR700202>