Trudy Stewart-Cook v Emali Childcare Pty Ltd T/A Emali Early Learning Centre

[2016] FWC 583

[2016] FWC 583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trudy Stewart-Cook
v
Emali Childcare Pty Ltd T/A Emali Early Learning Centre
(U2015/15585)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 16 December 2015, Ms Trudy Stewart-Cook made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Stewart-Cook advised that she commenced employment with Emali Childcare Pty Ltd on 7 September 2015 and that her dismissal took effect on 10 December 2015.

[3] On 17 December 2015, correspondence was sent to Ms Stewart-Cook 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 Stewart-Cook to file in the Fair Work Commission any documents/evidence to support her claim that she has served the minimum employment period. Ms Stewart-Cook was advised in the event that no documents/evidence was received, her application may be dismissed. An attempt was also made to telephone Ms Stewart-Cook on 17 December 2015, however this was unsuccessful.

[4] Ms Stewart-Cook did not reply to this correspondence.

[5] On 6 January 2016, further correspondence was sent to Ms Stewart-Cook, advising that unless advice was received by the Commission within 14 days that she wished to proceed with her application, her application would be dismissed.

[6] Ms Stewart-Cook did not reply to that correspondence.

[7] On 20 January 2016 and 28 January 2016, further attempts were made to contact Ms Stewart-Cook via telephone, which were unsuccessful.

[8] 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.

[9] 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.

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

[11] 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.

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

DEPUTY PRESIDENT

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