Vicki Lavery v Cedar Hospitality Supplies

[2019] FWC 502

[2019] FWC 502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicki Lavery
v
Cedar Hospitality Supplies
(U2019/240)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 8 January 2019, Miss Vicki Lavery made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Miss Lavery advised that she commenced employment with Cedar Hospitality Supplies (CHS) on 22 October 2018 and that she was notified of her dismissal on 3 December 2018, with the dismissal taking effect on the same day. It is noted that her Form F2 was therefore filed 15 days late.

[3] On 9 January 2019, the Commission attempted to telephone Miss Lavery, however this was unsuccessful and a voicemail message was left seeking a return call. Following this, email correspondence was sent to Miss Lavery’s nominated email address advising that her application indicated she had not been employed for the minimum employment period required under the Act. The correspondence directed Miss Lavery to file in the Commission within 14 days any documents or evidence to support her claim of having served the minimum employment period. Shortly after this correspondence was sent, Miss Lavery telephoned the Commission and confirmed her period of employment with CHS was per the Form F2. Miss Lavery also confirmed receipt of the email correspondence and said she wished to proceed with her application and would seek legal advice.

[4] To date, the Commission has not received any documentation or further correspondence from Miss Lavery.

[5] 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.

[6] 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.”

[7] 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.”

[8] Having regard to the circumstances of this matter, I am satisfied that as Miss Lavery has not completed the required minimum employment period, her application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR704353>