Shandelle Banditt v Fun 4 Kids Early Learning Centre

[2018] FWC 3987

[2018] FWC 3987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shandelle Banditt
v
Fun 4 Kids Early Learning Centre
(U2018/5408)

COMMISSIONER BISSETT SYDNEY, 5 JULY 2018

Application for an unfair dismissal remedy.

[1] On 25 May 2018, Miss Shandelle Banditt made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Banditt advised that she commenced employment with Fun 4 Kids Early Learning Centre on 9 April 2018 and that she was notified of her dismissal on 18 May 2018, with it taking effect the same day.

[3] On 25 May 2018, the Fair Work Commission attempted to contact Miss Banditt via telephone, however this was unsuccessful and a voicemail message was left requesting a return call. On the same day, correspondence was sent to Miss Banditt advising that on the basis of the information contained in the application, it did not appear she had served the minimum employment period required by the Act. Miss Banditt was directed to provide any documents/evidence to support her claim of having served the minimum employment period within 14 days. Miss Banditt was advised in the absence of a response, her application may be dismissed.

[4] On 7 June 2018, a further voicemail message was left for Miss Banditt requesting that she contact the Commission regarding the minimum employment period requirement under the Act. Further correspondence was then sent to Miss Banditt’s nominated email address, advising that unless contact was made with the Commission within seven days with an explanation as to why she did not respond to the direction contained in the first email, her application would be determined based on the material before the Commission.

[5] To date, Miss Banditt has not responded to the Commission’s 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] 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR608757>