Anne-Marie Quinn v Australian Trade and Investment Commission (Austrade)

[2020] FWC 5082

[2020] FWC 5082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anne-Marie Quinn
v
Australian Trade and Investment Commission (Austrade)
(U2020/10501)

DEPUTY PRESIDENT DEAN SYDNEY, 24 SEPTEMBER 2020

Application for an unfair dismissal remedy – minimum employment period not met – application dismissed.

[1] On 3 August 2020, Ms Anne-Marie Quinn made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Ms Quinn’s application states that she commenced employment with Australia Trade and Investment Commission (Austrade) on 3 February 2020 and that her dismissal took effect on 3 August 2020.

[3] Austrade objected to the application on the ground that Ms Quinn had not met the minimum employment period. Documents provided by Austrade indicated that Ms Quinn was offered employment on 30 January 2020 with a proposed commencement date of 3 February 2020. However, Ms Quinn requested to defer the start date and in fact commenced on 4 February. She was terminated at the end of the six month probation period.

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[5] Section 383 of the Act sets out 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.

[6] On 10 September 2020, correspondence was sent to Ms Quinn advising that she did not appear to have completed the minimum employment period. The correspondence required Ms Quinn to inform the Commission if she disputed Austrade’s objection. Ms Quinn did not respond to the correspondence. Attempts made to contact Ms Quinn on her nominated telephone number were also unsuccessful.

[7] On 16 September 2020, further correspondence was sent to Ms Quinn requiring a response by 4pm, 17 September 2020. Ms Quinn was advised that if no contact was made by the stipulated date, her application would be determined based on the material before the Commission.

[8] On the material before me, I am not satisfied that Ms Quinn has completed the required minimum employment period and is therefore not a person protected from unfair dismissal. There is no dispute that Ms Quinn commenced employment on 4 February 2020 and was dismissed on 3 August 2020.

[9] Section 587(1) of the Act provides:

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.

[10] In the circumstances of this matter, I am satisfied that Ms Quinn’s application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the Act.

[11] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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