Tracey Daley v Hotel Radnor Blackbutt

[2014] FWC 7033

[2014] FWC 7033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracey Daley
v
Hotel Radnor Blackbutt
(U2014/11510)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 8 August 2014, Ms Tracey Daley made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Daley advised that she commenced employment with Hotel Radnor Blackbutt on 5 May 2014 and that her dismissal took effect on 13 July 2014.

[3] On 8 August 2014, correspondence was sent to Ms Daley 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 Daley to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 5 September 2014, further correspondence was sent to Ms Daley allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] Further attempts to telephone Ms Daley were made on 18 August 2014 and 3, 4 and 19 September 2014.

[6] To date, Ms Daley did not advise whether she wished to proceed with her application.

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

[10] 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.

[11] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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