Natalie Richards v Quest West End Apartments

[2015] FWC 2108

[2015] FWC 2108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Richards
v
Quest West End Apartments
(U2015/2124)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Natalie Richards alleged the termination of her employment by Quest West End Apartments was unfair. In her application she advised that she commenced employment in July 2014 and her employment ended on 1 January 2015.

[2] In the employer response, Quest West End Holdings Pty Ltd stated that Ms Richards commenced employment on 11 August 2014 and her employed ended on 1 January 2015. Attached to the response, Quest attached a copy of Ms Richards’ employment record which showed that she commenced employment on 11 August 2014, a taxation declaration form signed by Ms Richards dated 12 August 2014 and an employment confirmation form signed by Ms Richards on 11 August 2014.

[3] On 16 February 2014, a letter was sent to Ms Richards setting out the information provided by Quest and section 384 of the Fair Work Act 2009 which defines the minimum period of employment. Ms Richards was directed to file an outline of argument to support her claim that she had served the minimum period of employment. Ms Richards did not reply by 26 February 2015 and a reminder was sent to her on 27 February 2015 giving her until 9 March 2015 to reply.

[4] The matter was listed for a telephone conference on 26 March 2015. Ms Richards was sent an email on 19 March 2015 to remind her of the need to prove that she was employed for a minimum period of time.

[5] In light of the disputed facts before the Fair Work Commission I determined that it was necessary to conduct a conference of the parties by telephone.

[6] Ms Richards did not participate in the conference. At the conference Quest relied upon the information already provided to the Commission.

[7] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides as follows:

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 determining whether Ms Richards has served the minimum employment period, no assessment has been made about the merits of her case. The Commission has no discretion to waive the requirements of the Act.

[9] On the evidence before the Commission Ms Richards has not served the minimum employment.

[10] As a consequence at the time of his dismissal Ms Richards was not protected from unfair dismissal and her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance by Applicant.

D. Ryan for the Respondent.

Hearing details:

2015.

Melbourne and Perth by telephone link:

26 March.

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