Kim Morante v Cims Hospitality Pty Ltd
[2023] FWC 2672
•13 OCTOBER 2023
| [2023] FWC 2672 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kim Morante
v
Cims Hospitality Pty Ltd
(U2023/9287)
| COMMISSIONER BISSETT | MELBOURNE, 13 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 25 September 2023 Kim Morante (the Applicant) made an application to the Commission in which they sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act (FW Act). In their Form F2 application, the Applicant stated that their employment with Cims Hospitality Pty Ltd (the Respondent) was terminated with effect from 20 September 2023.
On 4 October 2023, in a telephone conversation with a Commission staff member, the Applicant advised that they commenced employment with the Respondent in April 2023. The Applicant was informed that they may not have met the minimum employment period, and that the matter may be referred to a Member of the Commission who may otherwise dismiss their application. The Applicant further advised that they wished to proceed with their application.
The file was subsequently referred to me to determine.
On 5 October 2023 my Chambers sent correspondence to the Applicant. This correspondence advised the Applicant it was my preliminary view that, based on the information provided to the Commission, they had not been engaged for the minimum employment period and their application therefore had no reasonable prospect of success. The Applicant was required to file submissions by 12 October 2023 as to why I should not dismiss their application.
To date, the Applicant has not provided any further correspondence to the Commission.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. I am satisfied the Applicant has not completed the required minimum employment period.
Section 383 of the FW Act sets out the minimum employment period as follows:
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.
Section 587(1) of the FW Act provides as follows:
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 prospect of success.
As the Applicant has not completed the required minimum employment period under the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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