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

[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

Printed by authority of the Commonwealth Government Printer

In the matter of Anne-Marie Quinn v Australian Trade and Investment Commission (Austrade), the Federal Court was tasked with reviewing the decision to deny Ms. Quinn an unfair dismissal remedy. Ms. Quinn, who had been employed by Austrade, sought redress for her dismissal, claiming it was unjust under the Fair Work Act 2009. Austrade contested the claim, arguing that Ms. Quinn did not meet the requisite minimum employment period for such a remedy.

The central legal issue before the court was whether Ms. Quinn had satisfied the statutory precondition of having been continuously employed for at least six months before her dismissal. The court needed to determine whether this requirement was met and, if not, whether any exceptions applied under the Act. Additionally, the court had to consider whether the dismissal was procedurally fair, given that Ms. Quinn's employment was less than the stipulated period.

In its judgment, the Federal Court found that Ms. Quinn had not been employed by Austrade for the minimum required period of six months. Consequently, the court held that she was not eligible for an unfair dismissal remedy under the Fair Work Act. The court also noted that no procedural errors were identified in the dismissal process that would warrant a remedy. Therefore, the application was dismissed. The court did not find it necessary to delve into the fairness of the dismissal beyond the statutory requirement of the employment period.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established