Abigail Dixon v Bay Timber

[2024] FWC 824

[2024] FWC 824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Abigail Dixon
v

Bay Timber

(U2024/897)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

1. On 27 January 2024, Ms Abigail Dixon made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The Form F2 – Unfair Dismissal Application (Form F2) provided by Ms Dixon was incomplete in that she did not provide the commencement date or end date of her employment. Ms Dixon stated that she did not know the exact date she commenced her employment and provided that: “Last year I had started worked everyday for the past three months never missed a day I was never later not once…”. As to her effective dismissal date, Ms Dixon again advised that she did not know the exact date, “Last year I am not good with dates”.

1. On 30 January 2024, the Commission sent correspondence to Ms Dixon's nominated email address advising her that her application was missing information, and that she would need to provide the date upon which she started her employment and the effective dismissal date. That correspondence also warned Ms Dixon that if she did not provide the outstanding information within 14 days her application may be dismissed without further notice.

1. On 1 February 2024, Ms Dixon emailed the Commission a letter dated 30 January 2024, which had been sent to Ms Dixon from the Commission, advising her that her application fee had been waived. On 2 February 2024, the Commission attempted to contact Ms Dixon on her nominated telephone number, however Ms Dixon could not be reached. Later that day, at 10:16am and 4:21pm, the Commission sent correspondence to Ms Dixon’s nominated email address notifying her that her application was still missing information and that she would need to clarify her employment start and end dates in order to establish she had served the minimum employment period. At 11:22am, Ms Dixon replied to the Commission’s first email, stating that she had not received any phone calls from the Commission and enquiring whether she needed to do anything on her end. At 5:22pm, Ms Dixon replied to the Commission’s second email, advising the Commission that she would have a look through her documents to find her employment start and end dates.

1. As the required information was not received, on 20 February 2024 the Commission attempted to contact Ms Dixon on her nominated telephone number. The call went unanswered. An email was sent to Ms Dixon’s nominated email address at 11:55am advising her that if she did not make contact with the Commission by close of business her matter would be referred to a Member of the Commission. At 2:16pm, Ms Dixon replied to the Commission’s email stating “Can you tell me what I am missing?”, The Commission replied to Ms Dixon at 4:08pm, again advising her, as per the email of 30 January 2024, that the Commission required confirmation of her start and end dates of employment. Ms Dixon replied to the Commission’s email at 4:31pm stating “Alright no worries give me some time to look through payslips and I can confirm”.

1. On 21 February 2024, the Commission sent correspondence to Ms Dixon’s nominated email address in a final attempt to contact Mr Dixon and obtain the required information from her. To date, Ms Dixon has not provided the required information, despite on multiple occasions indicating that she would.

1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. Section 383 of the FW Act sets out the minimum employment period as follows:

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.

1. Section 587(1) of the FW Act provides as follows:

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.

1. As the material before the Commission does not satisfy me that Ms Dixon has completed the required minimum employment period under the FW Act, I am persuaded the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR772913.

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