Lorraine Bode v Flintwood Disability Services Incorporated

[2015] FWC 2466

[2015] FWC 2466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lorraine Bode
v
Flintwood Disability Services Incorporated
(U2015/951)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 APRIL 2015

Application for relief from unfair dismissal.

[1] On 5 March 2015, Ms Lorraine Bode made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Bode advised that she commenced employment with Flintwood Disability Services Incorporated on 13 August 2014 and that her dismissal took effect on 12 February 2015.

[3] On 6 March 2015, correspondence was sent to Ms Bode 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 Bode to advise the Fair Work Commission within 14 days whether she wished to proceed with her application and noted that in the event that no notification was received within 14 days, the application may be dismissed.

[4] Ms Bode did not respond to that correspondence.

[5] On 23 March 2015, further correspondence was sent to Ms Bode allowing a further 14 days in which to reply. This correspondence noted that unless advice was received within 14 days, the application would be dismissed.

[6] To date, Ms Bode has not replied to that correspondence.

[7] 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.

[8] 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.

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

[10] 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.

[11] 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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