Jessika Kadir v Eset Software Australia Pty Ltd

[2019] FWC 5507

[2019] FWC 5507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessika Kadir
v
ESET Software Australia Pty Ltd
(U2019/7310)

DEPUTY PRESIDENT DEAN SYDNEY, 8 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 3 July 2019, Ms Jessika Kadir made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Kadir advised that she commenced employment with ESET Software Australia Pty Ltd on 11 March 2019 and that her dismissal took effect on 12 June 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 4 July 2019, correspondence was sent to Ms Kadir indicating that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms Kadir to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 23 July 2019 further correspondence was sent to Ms Kadir allowing a further 7 days to respond. She was advised that in the absence of a reply, her application may be dismissed.

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

[8] 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.

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

[10] 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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