Aleisha-Marie Cooper v Dusk Australasia Pty Ltd

[2024] FWC 3126

[2024] FWC 3126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aleisha-Marie Cooper
v

Dusk Australasia Pty Ltd

(U2024/9828)

DEPUTY PRESIDENT EASTON SYDNEY, 12 NOVEMBER 2024

Application for an unfair dismissal remedy – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 22 August 2024 Ms Aleisha-Marie Cooper made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Cooper’s application has no reasonable prospects of success and should be dismissed.

1. Ms Cooper indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Dusk Australasia on 21 April 2024 and that her dismissal took effect on 21 August 2024. On the information provided by Ms Cooper, she was employed for 4 months.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines 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.”

1. In Ms Cooper’s case it does not matter whether the respondent is a small business employer because she does not appear to have completed the lesser minimum employment period of 6 months.

1. Commission staff have tried to contact Ms Cooper on the following dates:

·   28 August 2024 by telephone, SMS and letter; and

·   17 September 2024 returned call, left voicemessage.

1. Commission staff sought further information from Ms Cooper about whether she had served the minimum employment period.

1. Ms Cooper responded, however did not provide any additional relevant information regarding whether she had served the minimum employment period.

1. Ms Cooper has been on notice of the likely consequences if she does not provide further information that supports his/her eligibility to make the application.

1. To date Ms Cooper has not provided any further information that supports her eligibility to make the application.

Section 587

1. The relevant provisions in s.587 of the Act are 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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

Does Ms Cooper’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Ms Cooper’s dismissal until it is satisfied that she is eligible to make an unfair dismissal claim.

1. The information provided by Ms Cooper on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application.

1. Ms Cooper was invited to provide information that could show that she had in fact completed the minimum employment period. Ms Cooper did not provide any response that was consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about facts that could change the outcome of her application.

1. On 15 October 2024 Ms Cooper was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).   Ms Cooper did not respond.

1. I am satisfied that Ms Cooper has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Ms Cooper’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order dismissing Ms Cooper’s application (PR781196).

DEPUTY PRESIDENT

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