Leticia McFarlane v Plus Fitness 24/7 Gym

[2015] FWC 2913

[2015] FWC 2913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leticia McFarlane
v
Plus Fitness 24/7 Gym
(U2015/3518)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] On 27 February 2015, Ms Leticia McFarlane made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms McFarlane advised that she commenced employment with Plus Fitness 24/7 Gym (Plus Fitness) on 21 August 2014 and that her dismissal took effect on 13 February 2015.

[3] On 10 March 2015, Plus Fitness filed its employer response form which raised the jurisdictional objections that Ms McFarlane was not an employee and that she had not served the minimum employment period.

[4] On 24 March 2015, correspondence was sent to Ms McFarlane pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms McFarlane to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[5] On 31 March 2015, I caused further correspondence to be sent to Ms McFarlane which asked her to complete the Applicant’s Outline of Argument: Minimum Employment Period and Statement of Evidence. Ms McFarlane was requested to provide a response by close of business on 10 April 2015.

[6] Ms McFarlane did not reply to that correspondence.

[7] On 15 April 2015, I again caused correspondence to be sent to Ms McFarlane, requesting she complete the Applicant’s Outline of Argument: Minimum Employment Period and Statement of Evidence and return these by close of business on 22 April 2015.

[8] On 22 April 2015, the Fair Work Commission received from Ms McFarlane her Outline of Argument. Ms McFarlane indicated that she was a casual employee who was employed on a regular and systematic basis. Ms McFarlane submitted that she was employed for five months and three weeks.

[9] 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.

[10] Section 383 of the Act sets out the 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.”

[11] In the circumstances of this matter, I am satisfied Ms McFarlane has not completed the required minimum employment period and her application has no reasonable prospects of success.

[12] 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.”

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

DEPUTY PRESIDENT

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