Nitiya Walters v Alsco Pty Ltd

[2016] FWC 3247

[2016] FWC 3247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nitiya Walters
v
Alsco Pty Ltd
(U2016/6049)

COMMISSIONER WILSON MELBOURNE, 24 MAY 2016

Application for relief from unfair dismissal.

[1] On 11 April 2016, Ms Nitiya Walters made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Ms Walters advised that she commenced employment with Alsco Pty Ltd on 2 November 2015 and that her dismissal took effect on5 April 2016.

[3] On 20 April 2016, correspondence was sent to Ms Walters 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 Walters to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 4 May 2016, correspondence was sent to Ms Walters in relation to the correspondence dated 20 April 2016. Ms Walters was advised that if no response was received by 11 May 2016, the matter would be determined on the papers.

[5] Ms Walters has not replied 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 Walters 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 section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

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