Lillian Macken-Haynes v Pavement Limited Brands/Gumboots Australia Pty Ltd

[2014] FWC 6224

[2014] FWC 6224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lillian Macken-Haynes
v
Pavement Limited Brands/Gumboots Australia Pty Ltd
(U2014/8538)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 29 July 2014, Ms Lillian Macken-Haynes made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Macken-Haynes advised that she commenced employment with Pavement Limited Brands/Gumboots Australia Pty Ltd on 2 June 2014 and that her dismissal took effect on 18 July 2014.

[3] On 1 August 2014, correspondence was sent to Ms Macken-Haynes 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 Macken-Haynes to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 21 August 2014, further correspondence was sent to Ms Macken-Haynes allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Ms Macken-Haynes did not reply to that correspondence.

[6] 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.

[7] Section 383 of the Act sets out the minimum employment period:

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

[9] 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.

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

DEPUTY PRESIDENT

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