Taylor Burns v Live Long Enterprises Pty Ltd T/A Subway

[2018] FWC 3565

[2018] FWC 3565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Burns
v
Live Long Enterprises Pty Ltd T/A Subway
(U2018/4146)

COMMISSIONER BISSETT MELBOURNE, 19 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 20 April 2018, Miss Taylor Burns made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Burns advised that she commenced employment with Live Long Enterprises Pty Ltd T/A Subway on 21 November 2017 and that her dismissal took effect on 12 April 2018.

[3] On 24 April 2018, following a telephone call with Miss Burns, correspondence was sent to her confirming that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Miss Burns to file any documents/evidence to support her claim of having served the minimum employment period within 14 days. Miss Burns was advised in the absence of a response, her application may be dismissed.

[4] On 10 May 2018, a telephone call was made to Miss Burns who advised she was not able to speak at that time. Follow up phone calls were made on 18 May and 28 May 2018, however no contact was able to be made with Miss Burns.

[5] On 29 May 2018, final correspondence was sent to Miss Burns 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.

[6] To date, Miss Burns has not replied to the Fair Work 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 Miss Burns 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

Printed by authority of the Commonwealth Government Printer

<PR608211>