Megan Foley v 1834 Hotels Sanno Marracoonda Airport Hotel T/A Sanno Marracoonda Airport Hotel

[2016] FWC 4294

[2016] FWC 4294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Foley
v
1834 Hotels Sanno Marracoonda Airport Hotel T/A Sanno Marracoonda Airport Hotel
(U2016/2488)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 JUNE 2016

Application for relief from unfair dismissal.

[1] On 26 May 2016, Ms Foley made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Ms Foley advised that she commenced employment with 1834 Hotels Sanno Marracoonda Airport Hotel T/A Sanno Marracoonda Airport Hotel on 26 February 2016. Ms Foley notes that she has not received formal advice from Sanno that her employment was terminated but has not been rostered on since injuring herself at work.

[3] On 1 June 2016, correspondence was sent to Ms Foley 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 Foley to complete an outline of argument and a witness statement to assist the Commission in making a determination of this issue.

[4] Ms Foley contacted the Commission on the same day and outlined her concerns, in particular that she had not been officially terminated from her employment as yet. Ms Foley was advised that she should provide her response to the documents that were sent to her (provided in the correspondence outlined in paragraph [3]).

[5] On 21 June 2016 Ms Foley advised the Commission, by email, that she was seeking legal advice in relation to her circumstances “before [she] decide[s] an appropriate course of action. Following this advice, the Commission asked Ms Foley to complete the documents as provided to her on 1 June 2016 by close of business, 28 June 2016. Ms Foley was advised that if no response was received, the matter will be determined on the material the Commission has before it.

[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:

“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] Ms Foley lodged her application on 26 May 2016. Assuming that this was the last day on which she could have been dismissed she still has not served the minimum period of employment.

[9] In the circumstances of this matter, I am satisfied Ms Foley 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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