Rosa Resta v French Connection Brandbank

[2015] FWC 3007

[2015] FWC 3007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosa Resta
v
French Connection - Brandbank
(U2015/3366)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MAY 2015

Application for relief from unfair dismissal.

[1] On 22 February 2015, Ms Rosa Resta made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Resta advised that she commenced employment with French Connection - Brandbank (French Connection) on 3 November 2014 and that her dismissal took effect on 6 February 2015.

[3] On 24 February 2015, a Fair Work Commission staff member spoke with Ms Resta and it was discussed that she may not have served the minimum employment period. Ms Resta advised the staff member that she had filled in the wrong form and she was going to file a Form F8 and return it before the 21 days to file an application had passed. Ms Resta advised she would withdraw her application for a remedy for unfair dismissal once she had lodged the Form F8.

[4] On 4 March 2015, correspondence was sent to Ms Resta 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 Resta to advise the Commission within 14 days whether she wished to proceed with her application.

[5] On 24 March 2015, Ms Resta wrote to the Commission advising that she would not be withdrawing her application.

[6] On 23 April 2015, I caused correspondence to be sent to Ms Resta which directed her to provide evidence by noon on 30 April 2015 that she was employed for more than six months. She was advised that if she did not respond, her application would be dismissed. Ms Resta did not respond.

[7] 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.

[8] Section 383 of the Act sets out the 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] In the circumstances of this matter, I am satisfied Ms Resta has not completed the required minimum employment period and her application has no reasonable prospects of success.

[10] 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.”

[11] 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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