Kim Morante v Cims Hospitality Pty Ltd Summary

[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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CaseChat Overview and Summary

Kim Morante brought an application to the Fair Work Commission seeking a remedy for unfair dismissal under the Fair Work Act 2009. The application was against Cims Hospitality Pty Ltd, who had terminated the Applicant's employment on 20 September 2023. The Applicant, who began working for the Respondent in April 2023, was informed that their application might be dismissed as they had not met the minimum employment period required for protection against unfair dismissal. Despite this, the Applicant chose to proceed with their application, but subsequently did not provide any further submissions to the Commission.

The primary legal issue before the Commission was whether the Applicant had completed the minimum employment period, which would be required to grant protection against unfair dismissal. Under section 383 of the Fair Work Act, the minimum employment period for a person who is not a small business employer is six months, while for a small business employer it is one year. Given that the Respondent was not a small business employer, the key question was whether the Applicant had been employed for at least six months before their dismissal.

The Commission considered that the Applicant had not been employed for the requisite six-month period, as their employment began in April 2023 and they were dismissed in September 2023. This was less than the six-month period required under section 383 of the Act. Consequently, the Commission was satisfied that the application had no reasonable prospect of success, as the Applicant had not met the minimum employment period. Under section 587(1)(c) of the Fair Work Act, the application was dismissed as it did not meet the criteria for consideration.

The Commission did not need to make any orders as the application was dismissed on the basis that it had no reasonable prospect of success due to the Applicant not having completed the minimum employment period.

Kim Morante v Cims Hospitality Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established