Amanda Steen v We Care Staffing Solutions Pty Ltd

[2024] FWC 3217

[2024] FWC 3217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Steen
v

We Care Staffing Solutions Pty Ltd

(U2024/10453)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 NOVEMBER 2024

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative

1. Ms Amanda Steen applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 5 September 2024.

1. Ms Steen stated in her unfair dismissal application (Form F2) that her employment with We Care Staffing Solutions Pty Ltd (the Respondent) commenced on 3 July 2024 and her dismissal took effect on 16 August 2024.

1. On 10 September 2024, the Commission attempted to contact Ms Steen on her nominated telephone number. A voicemail message was left requesting Ms Steen to urgently contact the Commission. This was because the information provided in her Form F2 suggested that she may not have served the minimum employment period to be protected from unfair dismissal under the Act. Further, the application was incomplete in that Ms Steen did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80).

1. Later the same day, the Commission emailed correspondence to Ms Steen’s nominated email address informing her that she had not served the applicable minimum employment period based on the information that she had provided in her Form F2. The correspondence directed Ms Steen to file any documentation to support any claim that she had served the applicable minimum employment period under the Act. That correspondence also warned Ms Steen that if she did not contact the Commission within 14 days, her application might be dismissed without further notice.

1. On the same day, a SMS notification was sent to Ms Steen’s nominated mobile number requesting her to contact the Commission.

1. The Commission did not receive any documentation in support of Ms Steen’s Form F2 that could evidence that she had worked for the Respondent for the applicable minimum employment period.

1. The Commission made a final attempt to contact Ms Steen on her nominated telephone number on 17 October 2024. The call was not answered and a voicemail was left requesting Ms Steen to urgently contact the Commission in relation to her application and informing her that her application was at risk of being dismissed if no contact was received by close of business that same day.

1. Ms Steen has not responded to the Commission’s multiple attempts to contact her in relation to her Form F2 application.

1. Section 382 of the Act sets out that a person is protected from unfair dismissal if, inter alia, they completed a period of employment with their employer of at least the minimum employment period.

1. Section 383 of the Act sets out the meaning of 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.” (bold and italicised text in the original)

1. Section 395 of the Act provides as follows:

“395 Application fees 

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations. 

(2) The regulations may prescribe: 

(a) a fee for making an application to the FWC under this Division; and 

(b) a method for indexing the fee; and 

(c) the circumstances in which all or part of the fee may be waived or refunded.” (bold text in the original) 

1. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The relevant Form F2 application has not been accompanied by the prescribed application fee or a completed Form F80 for the Commission’s consideration and, therefore, has not been made in accordance with the Act. More fundamentally in this case, however, Ms Steen needs to have completed a period of employment of at least 6 months with the Respondent to be protected from unfair dismissal. The material before the Commission indicates that Ms Steen has not satisfied this requirement and, therefore, I am persuaded that her application has no reasonable prospects of success. As such, Ms Steen’s unfair dismissal application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR781486.

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