Raylene Burns v Bramwell Station Earthmoving Contractors

[2019] FWC 6059

[2019] FWC 6059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raylene Burns
v
Bramwell Station Earthmoving Contractors
(U2019/8586)

COMMISSIONER BISSETT MELBOURNE, 30 AUGUST 2019

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 5 August 2019, Ms Raylene Burns made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Burns advised that she commenced employment with Bramwell Station Earthmoving Contractors on 25 July 2019 and that her dismissal took effect on 26 July 2019.

[3] On 6 August 2019, the Commission contacted Ms Burns by telephone and advised that on the basis of the information contained in the application, she had not served the minimum employment period for lodging an unfair dismissal application. Correspondence was sent to Ms Burns 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 Burns to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 21 August 2019 further correspondence was sent to Ms Burns allowing a further seven days in which to reply, after which time the application would be dismissed. The Commission also attempted to telephone Ms Burns on 21 August 2019. Ms Burns could not be reached and a voicemail message was left.

[5] On 28 August 2019 the Commission made a final attempt to contact Ms Burns by telephone and a voicemail message was left.

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

[7] Section 382 of the FW 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 FW Act sets out the minimum employment period 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.

[9] Under s.587 of the FW Act the Commission may dismiss an application where there are grounds to do so.

[10] Section 587(1) of the FW Act provides as follows:

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] Having regard to the circumstances of this matter, I am satisfied that as Ms Burns has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

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