Renee McKenzie v Soteria T/A the Co-Group Limited

[2020] FWC 255

[2020] FWC 255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renee McKenzie
v
Soteria T/A The Co-Group Limited
(U2019/13562)

DEPUTY PRESIDENT DEAN SYDNEY, 17 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 December 2019, Ms Renee McKenzie made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms McKenzie advised that she commenced employment with Soteria T/A The Co-Group Limited on 29 July 2019 and that she was notified of her dismissal on 11 November 2019.

[3] 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.

[4] 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.

[5] On 5 December 2019, following an unsuccessful attempt to contact Ms McKenzie on the telephone number provided, correspondence was sent to Ms McKenzie 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 McKenzie to advise the Commission within 14 days whether she wished to proceed with her application.

[6] On 19 December 2019 further correspondence was sent to Ms McKenzie allowing a further 7 days to respond. She was advised that in the absence of a reply, her application may be dismissed

[7] A final attempt was made to contact Ms McKenzie on 3 January 2020 without success.

[8] To date, Ms McKenzie has not responded to any of the Commission’s correspondence.

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

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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