Yana O'Brien v IGA Ayers Rock Resort

[2016] FWC 3939

[2016] FWC 3939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yana O’Brien
v
IGA Ayers Rock Resort
(U2016/6694)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 JUNE 2016

Application for relief from unfair dismissal.

[1] On 4 May 2016, Ms Yana O’Brien made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Ms O’Brien advised that she commenced employment with IGA Ayers Rock Resort on 12 October 2015 and that her dismissal took effect on 14 April 2016.

[3] The matter was listed for conciliation however IGA declined to participate and raised an objection to Ms O’Brien’s claim. It said that Ms O’Brien did not meet the minimum employment period. It said that Ms O’Brien was employed from 14 October 2015 and dismissed on 14 April 2016, exactly six months, and during her employment she took 124.5 hours of unpaid leave and 50.5 hours of unpaid sick leave. IGA said that those hours of unpaid of leave did not count as service. As such, IGA objected to Ms O’Brien pursuing with her application.

[4] On 3 June 2016, correspondence was sent to Ms O’Brien pointing out that on the basis of the information contained in IGA’s response form, she had not served the minimum employment period. The correspondence required Ms O’Brien to advise the Commission whether she disputed IGA’s correspondence and was asked to respond to my chambers by 10 June 2016.

[5] A number of attempts were made to contact Ms O’Brien however they were not successful. Further Ms O’Brien did not reply to the Commission’s correspondence as requested.

[6] Section 397 of the Act provides that the Commission must conduct a hearing or conference if there are disputed facts. In this matter Ms O’Brien has not disputed the facts relied upon by IGA and accordingly the matter is determined on the basis of the material before me.

[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:

“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 384 defines an employee’s period of employment as follows:

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

[10] Section 22 of the Act defines service and continuous service as follows:

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

[11] It is not contested before me that Ms O’Brien had 124.5 hours of unpaid leave and 50.5 hours of unpaid sick leave and that these periods do not count towards Ms O’Brien’s service.

[12] Therefore, I am satisfied Ms O’Brien 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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