Tauanave Moo Ching v CDs Global Pty Ltd

[2015] FWC 2025

[2015] FWC 2025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tauanave Moo Ching
v
CDS Global Pty Ltd
(U2015/3148)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Tauanave Moo Ching alleged the termination of her employment by CDS Global was unfair. In her application she advised that she commenced employment on 30 October 2014 and her employment ended on 29 January 2015.

[2] CDS Global Pty Limited (CDS) filed an employer response and objected to Ms Moo Ching’s application on the basis that she had not served the minimum period of employment. CDS agreed that Ms Moo Ching commenced employment on 30 October 2014 and her employment ended on 29 January 2015.

[3] CDS advised that it wanted its objection dealt with before the matter was referred to conciliation. Ms Moo Ching however wanted her application to go to mediation. She did not dispute that she worked for CDS for three months. Ms Moo Ching advised that she would not be withdrawing her application.

[4] On 17 March 2015, I sent Ms Moo Ching an email advising her that based on the information provided by her, she had not served the minimum employment period. She was further advised that if the information provided was incorrect, she was to provide by noon on 24 March 2015 any evidence that she had to support her contention that she had been employed by CDS for at least six months. She was advised that if she did not provide any additional information, I would determine her application without a hearing or conference.

[5] Apart from asking if there are any other forms she could apply to dispute her dismissal, Ms Moo Ching did not provide any additional information.

[6] As there are no disputed facts, it is not necessary to have a hearing or conference.

[7] An employee is required to have served six months employment (12 months if employed by a small business) to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 (the Act) provides as follows:

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] In determining whether Ms Moo Ching has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[9] As Ms Moo Ching was only employed by CDS for three months, she was not protected from unfair dismissal and her application is therefore dismissed.

DEPUTY PRESIDENT

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