Lauren Valentine v PVH Brands T/A Calvin Klein

[2019] FWC 3686

[2019] FWC 3686

FAIR WORK COMMISSION

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

(c) the application has no reasonable prospects of success.”

[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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