Valentina Vargas Barrera v Lake St Claire Lodge T/A Eco Geo International Pty Ltd

[2015] FWC 8442

[2015] FWC 8442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Valentina Vargas Barrera
v
Lake St Claire Lodge T/A Eco Geo International Pty Ltd
(U2014/16529)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 21 December 2014, Ms Valentina Vargas Barrera made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Ms Vargas Barrera advised that she commenced employment with Lake St Claire Lodge T/A Eco Geo International Pty Ltd on 19 November 2014 and that her dismissal took effect on 2 December 2014.

[3] On 22 December 2014, correspondence was sent to Ms Vargas Barrera 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 Vargas Barrera to advise the Fair Work Commission within 14 days whether she wished to proceed with her application.

[4] On 8 January 2015 and 10 February 2015, the Commission forwarded letters to Ms Vargas Barrera chasing a response.

[5] On 29 January 2015, the Commission telephoned Ms Vargas Barrera and left a message requesting she contact the Commission.

[6] On 11 February 2015, Ms Vargas Barrera emailed the Commission advising she wished to continue with her application.

[7] On 18 February 2015, Ms Vargas Barrera telephoned the Commission and insisted she wished the matter to proceed.

[8] On 19 November 2015, my chambers forwarded Ms Vargas Barrera a letter directing her to file and serve documents/evidence supporting her claim that she had served the minimum employment period. She was advised in the letter that if the event that no documents were received within 14 days, her application would be dismissed.

[9] Ms Vargas Barrera did not reply to that correspondence.

[10] 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.

[11] 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.

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

[13] 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.

[14] 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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