Tamika York v Eagers Holdens T/A Eagers

[2018] FWC 4144

[2018] FWC 4144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamika York
v
Eagers Holdens T/A Eagers
(U2018/5799)

COMMISSIONER BISSETT SYDNEY, 12 JULY 2018

Application for an unfair dismissal remedy.

[1] On 5 June 2018, Ms Tamika York made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms York advised she commenced employment with Eagers Holdens T/A Eagers on 11 January 2018 and her dismissal took effect on 1 June 2018.

[3] Ms York noted in the covering email to her application that the best way of contacting her was via email or text message and not telephone as she is deaf.

[4] Also on 5 June 2018, email correspondence was sent to Ms York advising on the basis of the information contained in the application, she had not served the minimum employment period required under the Act. The correspondence required Ms York to file any documents/evidence to support her claim of having served the minimum employment period within 14 days. Ms York was advised in the absence of a response, her application may be dismissed.

[5] As no response was received, on 27 June 2018 further email correspondence was sent to Ms York which allowed a further seven days in which to provide an acceptable explanation of why she did not respond to the direction contained in the first piece of correspondence. It was also advised that if no contact was made, the application would be determined based on the material currently before the Fair Work Commission.

[6] To date, Ms York has not replied to the Commission’s correspondence.

[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:

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] 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 Ms York has not completed the required minimum employment period and her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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