DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Lauren Valentine
v
PVH Brands T/A Calvin Klein
(U2019/3737)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 3 JUNE 2019

Application for relief from unfair dismissal – minimum employment period not met – non responsive applicant - application dismissed

[1] On 3 April 2019, Miss Lauren Valentine made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

[2] Miss Valentine advised that she commenced employment with PVH Brands T/A Calvin Klein on 18 September 2018 and that her dismissal took effect on 14 March 2019.

[3] On 4 April 2019, correspondence was sent to Miss Valentine pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Valentine to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 9 May 2019 further correspondence was sent by email to Miss Valentine allowing a further 7 days in which to reply, after which time the application would be dismissed. An attempt to call Ms Valentine was also made however the call was unsuccessful and a voice mail message could not be left.

[5] To date, Miss Valentine has not replied to that correspondence from the Commission

[6] Section 382 of the FW 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.

[7] Section 383 of the FW Act sets out the legally required minimum employment period for applications of this type:

“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.”

[8] Unless the minimum employment period has been served, the Commission has no jurisdiction to further hear and determine the application. In the circumstances of this matter, I am satisfied Miss Valentine has not completed the required minimum employment period. Her application has no reasonable prospects of success.

[9] Section 587(1) of the FW 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

[10] Accordingly, the application is dismissed under section 587(1)(c) of the FW Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Lauren Valentine versus PVH Brands T/A Calvin Klein, the Fair Work Commission was asked to grant relief to Ms Valentine from an unfair dismissal. The crux of the matter was whether the applicant met the minimum employment period requirement to be eligible for relief under the Fair Work Act 2009. The applicant, Ms Valentine, had been employed for approximately three months when her employment was terminated. The employer, Calvin Klein, contended that she did not meet the requisite employment period of six months or more, as stipulated by the Act.

The primary legal issue before the Commission was whether Ms Valentine's employment duration qualified her for protection against unfair dismissal. Given the statutory requirement, the Commission had to determine if the minimum employment period was a mandatory precondition for relief. Additionally, the Court needed to consider the employer's contention that Ms Valentine had not provided a satisfactory response to the employer's submissions. The Commission examined the application's compliance with procedural requirements and whether the applicant's failure to adequately respond to the employer's arguments warranted dismissal of her application.

The Commission found that Ms Valentine did not satisfy the six-month employment period requirement, as her employment had lasted less than the statutory minimum. Consequently, she did not qualify for relief from unfair dismissal under the Act. Furthermore, the Commission noted that Ms Valentine had not adequately responded to the employer's submissions, which was a procedural lapse on her part. The application was dismissed on the basis that the applicant did not meet the eligibility criteria for relief and had failed to properly engage with the employer's submissions. The Commission emphasised the importance of meeting both the substantive and procedural requirements for relief under the Fair Work Act.

The final order of the Commission was that Ms Valentine's application for relief from unfair dismissal was dismissed. The Commission held that her employment duration did not meet the statutory requirement, and her failure to adequately respond to the employer's submissions further warranted the dismissal of her application. The decision underscores the necessity for applicants to meet both the substantive and procedural prerequisites for relief under the Fair Work Act.

Lauren Valentine v PVH Brands T/A Calvin Klein

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established