Tamara Argyle v Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd

[2019] FWC 5087

[2019] FWC 5087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamara Argyle
v
Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd
(U2019/6888)

DEPUTY PRESIDENT DEAN SYDNEY, 23 JULY 2019

Application for an unfair dismissal remedy.

[1] On 23 June 2019, Ms Tamara Argyle made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Argyle advised that she commenced employment with Australian Hearing and Balance Centre T/A Ear Corporation Pty Ltd on 19 February 2019 and that her dismissal took effect on 30 May 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 24 June 2019, correspondence was sent to Ms Argyle 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 Argyle to advise the Commission within 14 days whether she wished to proceed with her application. No response was received from Ms Argyle.

[6] On 2 July 2019 further correspondence was sent to Ms Argyle allowing a further 7 days to reply. She was advised that a failure to respond may result in her application being dismissed.

[7] Ms Argyle did not reply to that correspondence.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710571>