Annabel Daep v IRT Group

[2024] FWC 1750

[2024] FWC 1750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Annabel Daep
v

IRT Group

(U2024/5557)

DEPUTY PRESIDENT EASTON SYDNEY, 18 JULY 2024

Application for an unfair dismissal remedy

1. On 17 May 2024 Ms Annabel Daep made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Ms Daep advised in the Form F2 Unfair Dismissal Application that she commenced employment with IRT Group on 21 March 2024 and that her dismissal took effect on 3 May 2024.

1. On the information provided by Ms Daep, she worked for IRT Group for 1 month and 1 week.

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 Daep’s case it does not matter whether IRT Group 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 Daep about whether she had served the minimum employment period:

(a)On 21 May 2024 Commission staff attempted to call Ms Daep, however, the overseas number provided could not be connected.

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

(c)On 22 May 2024 Commission staff received two emails from Ms Daep with a timeline of employment and documentation including payslips and contract of employment. The email indicated that Ms Daep may not have met the minimum employment.

(d)On 6 June 2024, Commission staff again tried to call Ms Daep, however the telephone number provided did not connect.

(e)Later that day Commission staff emailed Ms Daep again advising her that on the basis of the information provided so far, she had not served the minimum employment period. The email asked Ms Daep to file any documents/evidence to support her claim that she had served the required minimum employment period. That email also warned that if she did not contact the Commission within 14 days the application may be dismissed without further notice.

1. To date Ms Daep 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 Daep’s application have any reasonable prospects of success?

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

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

1. Ms Daep was invited by correspondence to provide information that could show that she had in fact completed the minimum employment period. Ms Daep 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 4 July 2024 Ms Daep 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 Daep telling her that an important email had been sent. Ms Daep did not respond to this correspondence.

1. I am satisfied that Ms Daep 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 Daep’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 (PR776651).

DEPUTY PRESIDENT

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