Kia Dalton v Jennifer Erlank Cleaning Services

[2019] FWC 7376

[2019] FWC 7376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kia Dalton
v
Jennifer Erlank Cleaning Services
(U2019/9947)

DEPUTY PRESIDENT DEAN SYDNEY, 25 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 5 September 2019, Miss Kia Dalton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Dalton advised that she commenced employment with Jennifer Erlank Cleaning Services on 23 August 2019 and that her dismissal took effect on 4 September 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 6 September 2019, correspondence was sent to Miss Dalton indicating that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Dalton to advise the Commission within 14 days whether she wished to proceed with her application.

[6] The Commission attempted to contact Miss Dalton on 6 and 30 September 2019 and voice message were left on both occasions.

[7] On 11 October 2019 further correspondence was sent to Miss Dalton allowing a further 7 days to respond. She was advised that in the absence of a reply, her application may be dismissed.

[8] A final attempt was made to contact Miss Dalton on 22 October 2019 without success.

[9] To date, Miss Dalton has not responded to any of the Commission’s correspondence.

[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 that Miss Dalton has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to that effect will be issued.

DEPUTY PRESIDENT

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