Perla Heigh v Barking Mad Dog International Pty Ltd T/A the Mark Hotel

[2016] FWC 268

[2016] FWC 268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Perla Heigh
v
BARKING MAD DOG INTERNATIONAL PTY. LTD T/A The Mark Hotel
(U2015/14905)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 JANUARY 2016

Application for relief from unfair dismissal.

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

[2] Ms Heigh advised that she commenced employment with Barking Mad Dog International Pty Ltd on 4 May 2015 and that her dismissal took effect on 15 October 2015.

[3] On 12 November 2015, correspondence was sent to Ms Heigh 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 Heigh to advise the Fair Work Commission within 14 days whether she wished to proceed with her application. On the same day, a Commission staff member spoke with Ms Heigh via telephone and Ms Heigh advised that she intended to obtain legal advice.

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

[5] On 2 December 2015, further correspondence was sent to Ms Heigh, asking that she confirm whether she intended to proceed with her application. She was advised that unless advice was received from her within 14 days, her application would be dismissed.

[6] On 30 December 2015, a Commission staff member again spoke with Ms Heigh who advised she had not yet received legal advice, that she would do so soon and would then advise the Commission of her decision.

[7] On 8 January 2016, a voicemail was left for Ms Heigh asking that she return the Commission’s call as soon as possible. A text message was also sent to Ms Heigh on this day, asking that Ms Heigh contact my chambers and that if she did not do so by 4.00pm on 12 January 2016, her application would be dismissed.

[8] Ms Heigh did not reply to this correspondence.
[9] Today, there was a further attempt to contact Ms Heigh via telephone which was unsuccessful.

[10] 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.

[11] 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.

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

[13] 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.

[14] 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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