Andrea Barnard v Honor Early Learning Beenleigh

[2024] FWC 1879

[2024] FWC 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrea Barnard
v

Honor Early Learning Beenleigh

(U2024/5999)

DEPUTY PRESIDENT EASTON SYDNEY, 18 JULY 2024

Application for an unfair dismissal remedy

1. On 27 May 2024 Ms Andrea Barnard made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Ms Barnard advised in the Form F2 Unfair Dismissal Application that she commenced employment with Honor Early Learning Beenleigh 4 months ago and that her dismissal took effect on 27 May 2024.

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. A longer minimum employment period, 12 months rather than 6 months, applies to employees of small business employers. In Ms Barnard’s case it does not matter whether Honor Early Learning Beenleigh is a small business employer because she does not appear to have completed the lesser minimum employment period of 6 months

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

(a)On 30 May 2024 Commission staff attempted to call Ms Barnard however she wasn’t able speak and asked that we call her back.

(b)Later that day Commission staff emailed correspondence to Ms Barnard advising her that on the basis of the information provided in the Form F2, she had not served the minimum employment period. The correspondence directed Ms Barnard to file any documents/evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days the application may be dismissed without further notice. An SMS notification was also sent to Barnard’s nominated telephone number requesting that she contact the Commission.

(c)On 17 June 2024 Commission staff attempted to call Ms Barnard however she could not be reached. A voicemail message was left asking that she call back by close of business 18 June 2024.

1. To date Ms Barnard 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, 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] and the cases cited therein).

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

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

1. The information provided by Ms Barnard on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application. The Form F2 indicates that Ms Barnard was employed for approximately 4 months.

1. Ms Barnard was invited by correspondence to provide information that could show that she had in fact completed the minimum employment period. Ms Barnard 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 any facts that could change the outcome of her application.

1. On 10 July 2024 Ms Barnard was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). An SMS was also sent to Ms Barnard telling her that an important email had been sent. Ms Barnard did not respond to this correspondence.

1. I am satisfied that Ms Barnard has been able to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587.

1. For these reasons I am satisfied that Ms Barnard’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 to this effect (PR777110).

DEPUTY PRESIDENT

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